<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY , 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
<TABLE>
<S> <C> <C>
PUBLIC SERVICE ENTERPRISE ENTERPRISE CAPITAL TRUST II
GROUP INCORPORATED ENTERPRISE CAPITAL TRUST III
(Exact name of registrant (Exact name of registrants as specified in Trust Agreements)
as specified in charter)
NEW JERSEY (State or other jurisdiction of DELAWARE
22-2625848 incorporation or organization) 22-3577992
22-3577994
</TABLE>
(I.R.S. Employer Identification No.)
80 PARK PLAZA
P.O. BOX 1171
NEWARK, NEW JERSEY 07101
(973) 430-7000
(Address, including zip code, and telephone number, including area
code, of registrants' principal executive offices)
------------------------
ROBERT C. MURRAY
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
80 PARK PLAZA
P.O. BOX 1171
NEWARK, NEW JERSEY 07101
(973) 430-7000
(Name, address, including zip code, and telephone number, including
area code, of agent for service for each registrant)
WITH COPIES TO:
<TABLE>
<S> <C>
JAMES T. FORAN, ESQUIRE HOWARD G. GODWIN, JR., ESQUIRE
ASSOCIATE GENERAL COUNSEL BROWN & WOOD LLP
80 PARK PLAZA ONE WORLD TRADE CENTER
P.O. BOX 1171 NEW YORK, NEW YORK 10048
NEWARK, NEW JERSEY 07101
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
After the Registration Statement becomes effective, as determined by market
conditions and other factors.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING
SECURITIES TO BE REGISTERED (1) REGISTERED (2) UNIT (3)(4) PRICE (3)(4)
<S> <C> <C> <C>
Public Service Enterprise Group Incorporated
Senior Debt Securities......................
Public Service Enterprise Group Incorporated
Subordinated Debt Securities................
Enterprise Capital Trust II and III
Trust Preferred Securities..................
Public Service Enterprise Group Incorporated
Guarantees with respect to Trust
Preferred Securities (5)....................
Public Service Enterprise Group Incorporated
Deferrable Interest Subordinated Debentures...
Total......................................... $500,000,000 100% $500,000,000
<CAPTION>
TITLE OF EACH CLASS OF AMOUNT OF
SECURITIES TO BE REGISTERED (1) REGISTRATION FEE
<S> <C>
Public Service Enterprise Group Incorporated
Senior Debt Securities......................
Public Service Enterprise Group Incorporated
Subordinated Debt Securities................
Enterprise Capital Trust II and III
Trust Preferred Securities..................
Public Service Enterprise Group Incorporated
Guarantees with respect to Trust
Preferred Securities (5)....................
Public Service Enterprise Group Incorporated
Deferrable Interest Subordinated Debentures...
Total......................................... $147,500
</TABLE>
(1) Securities registered hereunder may be sold separately, together or as units
with other securities registered hereunder.
(2) There is being registered hereunder (a) a presently indeterminate principal
amount of Senior Debt Securities and Subordinated Debt Securities and (b) a
presently indeterminate number of Trust Preferred Securities of Enterprise
Capital Trust II and III and related Guarantees and Deferrable Interest
Subordinated Debentures of Public Service Enterprise Group Incorporated for
which no separate consideration will be received, all with an aggregate
initial offering price not to exceed $500,000,000.
(3) Estimated solely for the purpose of determining the registration fee.
(4) Pursuant to Rule 457(n) and (o), the registration fee is calculated on the
basis of the proposed maximum offering price of the securities being
offered.
(5) This registration is deemed to include the rights of holders of the Trust
Preferred Securities under the Guarantees and certain backup undertakings as
described in the Registration Statement.
------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the prospectuses
included in this registration statement are combined prospectuses relating also
to registration statement no. 333-43241 previously filed by the registrants on
Form S-3 and declared effective on January 8, 1998. This registration statement,
which is a new registration statement, also constitutes post-effective amendment
no. 1 to registration statement 333-43241, and such post-effective amendment no.
1 shall hereafter become effective concurrently with the effectiveness of this
registration statement and in accordance with section 8(c) of the Securities Act
of 1933.
------------------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
EXPLANATORY NOTE
This Registration Statement contains the following two separate prospectuses:
1. A form of prospectus to be used in connection with offerings by Public
Service Enterprise Group Incorporated of its Senior Debt Securities and
Subordinated Debt Securities (together, the "Debt Securities").
2. A form of prospectus to be used in connection with offerings by Enterprise
Capital Trust II and Enterprise Capital Trust III of Trust Preferred Securities,
together with related debt securities and guarantees of Public Service
Enterprise Group Incorporated.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THESE PROSPECTUSES SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS SUBJECT TO COMPLETION, DATED MAY , 1998
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
DEBT SECURITIES
------------------------
Public Service Enterprise Group Incorporated ("Enterprise") may offer from
time to time, together or separately, (i) one or more series of its unsecured
debt securities ("Debt Securities") which may be either senior (the "Senior
Securities") or subordinated (the "Subordinated Securities") in priority of
payment.
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of Enterprise. The Subordinated Securities will be
unsecured and subordinated as described under "Description of Debt Securities --
Subordination."
When a particular series of Debt Securities is offered, a supplement to
this Prospectus (a "Prospectus Supplement") setting forth certain terms of the
offered Debt Securities (the "Offered Securities") will be delivered together
with this Prospectus. The applicable Prospectus Supplement, among other things
and where applicable, will include the specific designation, priority, aggregate
principal amount, rate (which may be fixed or variable) and time of payment of
any interest, authorized denominations, maturity, offering price, place or
places of payment, redemption terms at the option of Enterprise, terms of any
repayment at the option of the holder, terms for sinking fund payments, terms
for conversion or exchange into other securities, provisions regarding original
issue discount securities and other terms of such Debt Securities. The
applicable Prospectus Supplement may also contain applicable information about
certain federal income tax, accounting and other considerations relating to, and
any listing on a securities exchange of, the Offered Securities covered by such
Prospectus Supplement.
The aggregate initial public offering price of all Debt Securities which
may be sold under this Prospectus shall not exceed $500,000,000 less the
aggregate initial public offering price of any securities of certain Enterprise
funding entities which are sold under a separate prospectus which also
constitutes a part of the Registration Statement of which this Prospectus
constitutes a part. See "Available Information."
Enterprise may sell the Debt Securities directly, through agents,
underwriters or dealers as designated from time to time, or through a
combination of such methods. If any such agents, underwriters or dealers are
involved in the sale of the Debt Securities in respect of which this Prospectus
is being delivered, the names of such agents, underwriters or dealers and any
applicable agent's commission, underwriter's discount or dealer's purchase price
and the net proceeds to Enterprise from such sale will be set forth in, or may
be calculated on the basis set forth in, the applicable Prospectus Supplement.
See "Plan of Distribution" for possible indemnification arrangements for any
such agents, underwriters and dealers.
This Prospectus may not be used to consummate sales of the Debt Securities
without the delivery of one or more Prospectus Supplements.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
Public Service Enterprise Group Incorporated, a New Jersey corporation, is
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and, in accordance therewith, files
reports and other information with the Securities and Exchange Commission
("SEC"). Such reports and other information can be inspected and copied at the
public reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. and at its regional offices at 500 West Madison Street,
Chicago, Illinois and 7 World Trade Center, New York, New York. Copies of such
reports and other information may also be obtained from the Public Reference
Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549-1004 at
prescribed rates. Such reports and other information can also be inspected at
the New York Stock Exchange, Inc. (the "New York Stock Exchange") where certain
of Enterprise's securities are listed. In addition, the SEC maintains a Web site
that contains reports, proxy and other information regarding registrants that
file electronically with the SEC. The address of such Web site is
http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by Enterprise with the SEC
pursuant to the Exchange Act, are incorporated herein by reference:
1. Enterprise's Annual Report on Form 10-K for the year ended December
31, 1997.
2. Enterprise's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference in this Prospectus and the accompanying Prospectus
Supplement and shall be a part hereof and thereof from the date of filing of
such document. Any statement contained herein or therein or in a document all or
a portion of which is incorporated or deemed to be incorporated by reference
herein and therein shall be deemed to be modified or superseded for purposes of
this Prospectus and the accompanying Prospectus Supplement to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein and
therein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or the accompanying Prospectus Supplement.
Enterprise undertakes to provide without charge to each person, including
any beneficial owner, to whom this Prospectus and the accompanying Prospectus
Supplement are delivered, upon written or oral request of such person, a copy of
any or all documents described above, other than exhibits to such documents not
specifically incorporated by reference therein. Such requests should be directed
to the Director-Investor Relations, Public Service Electric and Gas Company, 80
Park Plaza, T6B, P.O. Box 570, Newark, New Jersey 07101, telephone (973)
430-6503.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
Enterprise is a public utility holding company that neither owns nor
operates any physical properties. Enterprise has two direct, wholly owned
subsidiaries, Public Service Electric and Gas Company ("PSE&G") and Enterprise
Diversified Holdings Incorporated ("EDHI"). Enterprise's principal subsidiary,
PSE&G, is an operating public utility providing electric and gas service in
certain areas of the State of New Jersey. EDHI is the parent of Enterprise's
non-utility businesses: Community Energy Alternatives Incorporated, Public
Service Resources Corporation, Energis Resources Incorporated, Enterprise Group
Development Corporation, PSEG Capital Corporation and Enterprise Capital Funding
Corporation.
Enterprise's executive offices are located at 80 Park Plaza, Newark, New
Jersey 07101, and its telephone number is (973) 430-7000.
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities will be added to
Enterprise's general funds and will be used for general corporate purposes,
including but not limited to additional investments in its subsidiaries.
DESCRIPTION OF DEBT SECURITIES
Enterprise may issue (either separately or together with other Offered
Securities) its Debt Securities from time to time. The Senior Securities will be
issued under an Indenture (the "Senior Indenture") to be entered into between
Enterprise and First Union National Bank, Trustee (the "Senior Trustee"), and
the Subordinated Securities will be issued under an Indenture
2
<PAGE>
(the "Subordinated Indenture") to be entered into between Enterprise and First
Union National Bank, Trustee (the "Subordinated Trustee"). The term "Trustee" as
used herein refers to either the Senior Trustee or the Subordinated Trustee, as
appropriate. The Senior Indenture and the Subordinated Indenture (being
sometimes referred to herein collectively as the "Indentures" and individually
as an "Indenture") are filed as exhibits to the registration statement. The
Indentures are subject to and governed by the Trust Indenture Act of 1939, as
amended (the "TIA"). The following summary of certain provisions of the
Indentures does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the Indentures, including the definitions of
certain terms therein. Parenthetical references below are to the Indentures or
to the TIA, as applicable.
PROVISIONS APPLICABLE TO BOTH THE SENIOR AND SUBORDINATED INDENTURES
GENERAL
The Debt Securities will be unsecured obligations of Enterprise. The Senior
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of Enterprise. The Subordinated Securities will be subordinated in
right of payment to the prior payment in full of the Senior Indebtedness of
Enterprise as described under " -- Subordinated Indenture
Provisions -- Subordination".
Each Indenture provides that any Debt Securities proposed to be sold
pursuant to this Prospectus and the accompanying Prospectus Supplement ("Offered
Debt Securities"), as well as other unsecured debt securities of Enterprise, may
be issued under such Indenture in one or more series, in each case as authorized
from time to time by Enterprise. The particular terms of the Offered Debt
Securities and any modifications of or additions to the general terms of the
Debt Securities as described herein that may be applicable in the case of the
Offered Debt Securities are described in the Prospectus Supplement. Accordingly,
for a description of the terms of any Offered Debt Securities, reference must be
made to both the Prospectus Supplement relating thereto and the description of
Debt Securities set forth in this Prospectus.
With respect to the Offered Debt Securities, reference is made to the
Prospectus Supplement for the following terms:
(1) The title of such Debt Securities and whether such Debt
Securities will be Senior Securities or Subordinated Securities.
(2) The aggregate principal amount of such Debt Securities and any
limit on the aggregate principal amount of Debt Securities of such
series.
(3) If other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of the
maturity thereof or the method by which such portion will be determined.
(4) The date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of such Debt
Securities will be payable.
(5) The rate or rates at which such Debt Securities will bear
interest, if any, or the method by which such rate or rates will be
determined, the date or dates from which such interest will accrue or
the method by which such date or dates will be determined, the date or
dates on which such interest, if any, will be payable and the Regular
Record Date or Dates, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which any such
date will be determined, and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve 30-day months.
(6) The date or dates on which or the period or periods within
which, the price or prices at which and the other terms and conditions
upon which, such Debt Securities may be redeemed, in whole or in part,
at the option of Enterprise and whether Enterprise is to have that
option.
(7) The obligation, if any, of Enterprise to redeem, repay or
purchase such Debt Securities, in whole or in part, pursuant to any
sinking fund or analogous provision or at the option of a holder thereof
and the period or periods within which or the date or dates on which,
the price or prices at which and the other terms and conditions upon
which, such Debt Securities will be so redeemed, repaid or purchased.
(8) Whether such Debt Securities are to be issuable as Registered
Securities, Bearer Securities or both, any restrictions applicable to
the offer, sale or delivery of Bearer Securities and the terms, if any,
upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and VICE VERSA (if permitted by
applicable laws and regulations), whether such Debt Securities will be
issuable initially in temporary global form, whether any such Debt
Securities will be issuable in permanent global form with or without
coupons and, if so,
3
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whether beneficial owners of interests in any such permanent global
security may exchange such interests for Debt Securities of such series
in certificate form and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in the applicable Indenture,
and, if Registered Securities are to be issuable as a global security,
the identity of the depository for such Debt Securities.
(9) Whether the amount of payments of principal of (or premium, if
any) or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may be based on one or more Currencies, commodities, equity
indices or other indices) and the manner in which such amounts will be
determined.
(10) The place or places, if any, other than or in addition to The
City of New York, where the principal of (and premium, if any) and
interest, if any, on such Debt Securities will be payable, where any
Registered Securities may be surrendered for registration of transfer,
where such Debt Securities may be surrendered for exchange, where Debt
Securities of a series that are convertible or exchangeable may be
surrendered for conversion or exchange and where notices or demands to
or upon Enterprise in respect of such Debt Securities and the applicable
Indenture may be served.
(11) The denomination or denominations in which such Debt
Securities will be issuable, if other than $1,000 or any integral
multiple thereof in the case of Registered Securities and $5,000 in the
case of Bearer Securities.
(12) If other than the applicable Trustee, the identity of each
Security Registrar and/or Paying Agent.
(13) The date as of which any Bearer Securities of the series and
any temporary Debt Security issued in global form representing
Outstanding Securities of the series will be dated if other than the
date of original issuance of the first Debt Security of the series to be
issued.
(14) The applicability, if at all, to such Debt Securities of the
provisions of Article Fourteen of the applicable Indenture described
under "Defeasance and Covenant Defeasance" and any provisions in
modification of, in addition to or in lieu of any of the provisions of
such Article.
(15) The Person to whom any interest on any Registered Security of
the series will be payable, if other than the Person in whose name such
Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary Debt Security issued in global form
will be paid if other than in the manner provided in the applicable
Indenture.
(16) If such Debt Securities are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Debt
Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions.
(17) Whether and under what circumstances Enterprise will pay
Additional Amounts, as contemplated by Section 1004 of the applicable
Indenture, on such Debt Securities to any holder who is not a United
States person (including any modification to the definition of such term
as contained in the applicable Indenture as originally executed) in
respect of any tax, assessment or governmental charge and, if so,
whether Enterprise will have the option to redeem such Debt Securities
rather than pay such Additional Amounts (and the terms of any such
option).
(18) The provisions, if any, granting special rights to the holders
of such Debt Securities upon the occurrence of such events as may be
specified.
(19) Any deletions from, modifications of or additions to the
Events of Default or covenants of Enterprise with respect to such Debt
Securities (which Events of Default or covenants are consistent with the
Events of Default or covenants set forth in the general provisions of
the applicable Indenture).
(20) Whether such Debt Securities will be convertible into or
exchangeable for any other securities and, if so, the terms and
conditions upon which such Debt Securities will be so convertible or
exchangeable.
(21) Any other terms of such Debt Securities.
4
<PAGE>
If applicable, the Prospectus Supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant to the Debt Securities being offered.
For purposes of this Prospectus, any reference to the payment of principal
of (or premium, if any) or interest, if any, on such Debt Securities will be
deemed to include mention of the payment of any Additional Amounts required by
the terms of such Debt Securities.
Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Federal income tax and other
considerations pertaining to any such Original Issue Discount Securities will be
discussed in the applicable Prospectus Supplement.
Each Indenture provides that the Debt Securities which are the subject of
this Prospectus and additional unsecured debt securities of Enterprise,
unlimited as to aggregate principal amount, may be issued in one or more series
thereunder, in each case as authorized from time to time by or pursuant to
authority granted by the Board of Directors of Enterprise. (Section 301 of each
Indenture) Debt Securities so issued under an Indenture are herein collectively
referred to, when a single Trustee is acting for all debt securities issued
under such Indenture, as the "Indenture Securities". Each Indenture also
provides that there may be more than one Trustee thereunder, each with respect
to one or more different series of Indenture Securities. See also "Resignation
of Trustee" herein. At a time when two or more Trustees are acting under either
Indenture, each with respect to only certain series, the term "Indenture
Securities", as used herein, will mean the one or more series with respect to
which each respective Trustee is acting. In the event that there is more than
one Trustee under either Indenture, the powers and trust obligations of each
Trustee as described herein will extend only to the one or more series of
Indenture Securities for which it is Trustee. If two or more Trustees are acting
under either Indenture, then the Indenture Securities for which each Trustee is
acting would in effect be treated as if issued under separate indentures.
The general provisions of the Indentures do not contain any provisions that
would limit the ability of Enterprise to incur indebtedness or that would afford
holders of Debt Securities protection in the event of a highly leveraged or
similar transaction involving Enterprise. Reference is made to the Prospectus
Supplement for information with respect to any deletions from, modifications of
or additions to the Events of Default or covenants of Enterprise that are
described below, including any addition of a covenant or other provision
providing event risk or similar protection.
Enterprise has the ability to issue Indenture Securities with terms
different from those of Indenture Securities previously issued and, without the
consent of the holders thereof, to reopen a previous issue of a series of
Indenture Securities and issue additional Indenture Securities of such series
(unless such reopening was restricted when such series was created).
DENOMINATIONS, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable solely as Registered
Securities, solely as Bearer Securities or as both Registered Securities and
Bearer Securities. The Indentures also provide that Debt Securities of a series
may be issuable in global form. See " -- Book-Entry Debt Securities". Unless
otherwise provided in the Prospectus Supplement, Debt Securities denominated in
U.S. dollars (other than Global Securities, which may be of any denomination)
are issuable in denominations of $1,000 or any integral multiples of $1,000 (in
the case of Registered Securities) and in the denomination of $5,000 (in the
case of Bearer Securities). Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities will have interest coupons attached. (Section 201
of each Indenture)
Registered Securities will be exchangeable for other Registered Securities
of the same series. If (but only if) provided in the Prospectus Supplement,
Bearer Securities (with all unmatured coupons, except as provided below, and all
matured coupons which are in default) of any series may be similarly exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor. If so provided, Bearer
Securities surrendered in exchange for Registered Securities between a Regular
Record Date or a Special Record Date and the relevant date for payment of
interest will be surrendered without the coupon relating to such date for
payment of interest, and interest will not be payable in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the holder of such coupon when due in accordance with the terms
of the applicable Indenture. Unless otherwise specified in the Prospectus
Supplement, Bearer Securities will not be issued in exchange for Registered
Securities. (Section 305 of each Indenture)
Registered Securities of a series may be presented for registration of
transfer and Debt Securities of a series may be presented for exchange (i) at
each office or agency required to be maintained by Enterprise for payment of
such series as described in "Payment and Paying Agents", and (ii) at each other
office or agency that Enterprise may designate from time to
5
<PAGE>
time for such purposes. No service charge will be made for any transfer or
exchange of Debt Securities, but Enterprise may require payment of any tax or
other governmental charge payable in connection therewith. (Section 305 of each
Indenture)
Enterprise will not be required to (i) issue, register the transfer of or
exchange Debt Securities during a period beginning at the opening of business 15
days before any selection of Debt Securities of that series to be redeemed and
ending at the close of business on (A) if Debt Securities of the series are
issuable only as Registered Securities, the day of mailing of the relevant
notice of redemption and (B) if Debt Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption, or, if Debt Securities of the series are also issuable as Registered
Securities and there is no publication, the day of mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any Registered
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Security being redeemed in part; (iii) exchange any
Bearer Security called for redemption, except to exchange such Bearer Security
for a Registered Security of that series and like tenor that is simultaneously
surrendered for redemption; or (iv) issue, register the transfer of or exchange
any Debt Security which has been surrendered for repayment at the option of the
holder, except the portion, if any, of such Debt Security not to be so repaid.
(Section 305 of each Indenture)
PAYMENT AND PAYING AGENTS
Unless otherwise provided in the Prospectus Supplement, premium, if any,
and interest, if any, and Additional Amounts, if any, on Registered Securities
will be payable at any office or agency to be maintained by Enterprise in
Newark, New Jersey and New York, New York, except that at the option of
Enterprise interest (including Additional Amounts, if any) may be paid (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register.
(Sections 301, 1001 and 1002 of each Indenture) Unless otherwise provided in the
Prospectus Supplement, payment of any installment of interest on Registered
Securities will be made to the Person in whose name such Registered Security is
registered at the close of business on the Regular Record Date for such
interest. (Section 307 of each Indenture)
If Debt Securities of a series are issuable solely as Bearer Securities or
as both Registered Securities and Bearer Securities, unless otherwise provided
in the Prospectus Supplement, Enterprise will be required to maintain an office
or agency (i) outside the United States at which, subject to any applicable laws
and regulations, the principal of (and premium, if any) and interest, if any, on
such series will be payable and (ii) in The City of New York for payments with
respect to any Registered Securities of such series (and for payments with
respect to Bearer Securities of such series in the limited circumstances
described below, but not otherwise); provided that, if required in connection
with any listing of such Debt Securities on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States, Enterprise will maintain
an office or agency for such Debt Securities in any city located outside the
United States required by such stock exchange. (Section 1002 of each Indenture)
The initial locations of such offices and agencies will be specified in the
Prospectus Supplement. Unless otherwise provided in the Prospectus Supplement,
principal of (and premium, if any) and interest, if any, on Bearer Securities
may be paid by wire transfer to an account maintained by the Person entitled
thereto with a bank located outside the United States. (Sections 307 and 1002 of
each Indenture) Unless otherwise provided in the Prospectus Supplement, payment
of installments of interest on any Bearer Securities on or before Maturity will
be made only against surrender of coupons for such interest installments as they
severally mature. (Section 1001 of each Indenture) Unless otherwise provided in
the Prospectus Supplement, no payment with respect to any Bearer Security will
be made at any office or agency of Enterprise in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States. Notwithstanding the
foregoing, payments of principal of (and premium, if any) and interest, if any,
on Bearer Securities payable in U.S. dollars will be made at the office of
Enterprise's Paying Agent in The City of New York if (but only if) payment of
the full amount thereof in U.S. dollars at all offices or agencies outside the
United States is illegal or effectively precluded by exchange controls or other
similar restrictions. (Section 1002 of each Indenture)
Enterprise may from time to time designate additional offices or agencies,
approve a change in the location of any office or agency and, except as provided
above, rescind the designation of any office or agency.
EVENTS OF DEFAULT
The following will constitute Events of Default under each Indenture, or of
any coupon upon or any Additional Amounts payable in respect of any Debt
Security of that series or of any coupon appertaining thereto, (i) default in
the payment of the principal of (or premium, if any, on) any Debt Security of
that series when the same becomes due and payable, whether at its maturity,
earlier redemption or repayment or otherwise and continuance of such default for
a period of
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30 days; (ii) default in the deposit of any sinking fund payment when due by the
terms of any Debt Security of that series; (iii) default in the performance, or
breach, of any covenant or agreement of Enterprise in the applicable Indenture
with respect to any Debt Security of that series, continued for 60 days after
written notice to Enterprise; (iv) certain events in bankruptcy, insolvency or
reorganization affecting Enterprise; and (v) any other Event of Default provided
with respect to Debt Securities of that series. (Section 501 of each Indenture)
Enterprise is required to file with the applicable Trustee, annually, an
officer's certificate as to Enterprise's compliance with all conditions and
covenants under the applicable Indenture. (Section 1005 of each Indenture) Each
Indenture provides that the applicable Trustee may withhold notice to the
holders of Debt Securities of a series of any default (except payment defaults
on such Debt Securities of that series) if it considers it in the interest of
the holders of Debt Securities of such series to do so. (Section 601 of each
Indenture)
If an Event of Default with respect to Debt Securities of a series has
occurred and is continuing, the applicable Trustee or the holders of not less
than 25% in principal amount of Outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms thereof) of all of the Debt
Securities of that series due and payable immediately. (Section 502 of each
Indenture)
Subject to the provisions of the applicable Indenture relating to the
duties of the Trustee thereunder, in case an Event of Default with respect to
Debt Securities of a series has occurred and is continuing, such Trustee is
under no obligation to exercise any of its rights or powers under such Indenture
at the request, order or direction of the holders of Debt Securities of that
series, unless such holders have offered such Trustee reasonable indemnity
against the expenses and liabilities which might be incurred by it in compliance
with such request. (Section 507 of each Indenture and TIA Section 315) Subject
to such provisions for the indemnification of the applicable Trustee, the
holders of a majority in principal amount of the Outstanding Debt Securities of
a series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to such Trustee, or exercising any trust
or power conferred on such Trustee with respect to the Debt Securities of that
series. (Section 512 of each Indenture)
The holders of a majority in principal amount of the Outstanding Debt
Securities of a series may, on behalf of the holders of all Debt Securities of
such series and any related coupons, waive any past default under the applicable
Indenture with respect to such series and its consequences, except a default (i)
in the payment of the principal of (or premium, if any) or interest, if any, on
or Additional Amounts payable in respect of any Debt Security of such series or
any related coupons or (ii) in respect of a covenant or provision that cannot be
modified or amended without the consent of the holder of each Outstanding Debt
Security of such series affected thereby. (Section 513 of each Indenture)
MERGER OR CONSOLIDATION
Each Indenture provides that Enterprise may not consolidate with or merge
with or into any other corporation or convey or transfer its properties and
assets as an entirety or substantially as an entirety to any Person, unless
either Enterprise is the continuing corporation or such corporation or Person
assumes by supplemental indenture all the obligations of Enterprise under such
Indenture and the Indenture Securities issued thereunder and immediately after
the transaction no default shall exist. In addition, under the Indentures, no
such consolidation, merger or transfer may be made if as a result thereof any
property or assets of Enterprise would become subject to any mortgage, lien or
other encumbrance unless such Indenture Securities are secured equally and
ratably with or prior to the debt secured by such mortgage, lien or other
encumbrance. (Section 801 of each Indenture)
MODIFICATION OR WAIVER
Modification and amendment of an Indenture may be made by Enterprise and
the Trustee thereunder with the consent of the holders of a majority in
principal amount of all Outstanding Indenture Securities issued thereunder that
are affected by such modification or amendment; provided that no such
modification or amendment may, without the consent of the holder of each
Outstanding Indenture Security affected thereby, among other things: (i) change
the Stated Maturity of the principal of (or premium, if any, on) or any
installment of principal of or interest on any such Indenture Security; (ii)
reduce the principal amount of, or the rate or amount of interest in respect of,
or any premium payable upon the redemption of, any such Indenture Security;
(iii) change any obligation of Enterprise to pay Additional Amounts in respect
of any such Indenture Security; (iv) reduce the portion of the principal of an
Original Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof or provable
in bankruptcy; (v) adversely affect any right of repayment at the option of the
holder of any such Indenture Security; (vi) change the place or Currency of
payment of
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principal of, or any premium or interest on, any such Indenture Security; (vii)
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof or on or after any Redemption Date or
Repayment Date therefor; (viii) adversely affect any right to convert or
exchange any Indenture Security; (ix) reduce the percentage in principal amount
of such Outstanding Indenture Securities, the consent of whose holders is
required to amend or waive compliance with certain provisions of such Indenture
or to waive certain defaults thereunder; (x) reduce the requirements for voting
or quorum described below; or (xi) modify any of the foregoing requirements or
any of the provisions relating to waiving past defaults or compliance with
certain restrictive provisions, except to increase the percentage of holders
required to effect any such waiver or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the holder
of each Indenture Security affected thereby. (Section 902 of each Indenture)
In addition, under the Subordinated Indenture, no modification or amendment
thereof may, without the consent of the holder of each Outstanding Subordinated
Security affected thereby, modify any of the provisions of such Indenture
relating to the subordination of the Subordinated Securities in a manner adverse
to the holders thereof and no such modification or amendment may adversely
affect the rights of any holder of Senior Indebtedness under Article Sixteen of
the Subordinated Indenture (described under the caption " -- Subordinated
Indenture Provisions -- Subordination") without the consent of such holder of
Senior Indebtedness. (Sections 902 and 907 of the Subordinated Indenture)
The holders of a majority in aggregate principal amount of Outstanding
Indenture Securities have the right to waive compliance by Enterprise with
certain covenants in the applicable Indenture. (Section 1006 of each Senior
Indenture)
Modification and amendment of an Indenture may be made by Enterprise and
the applicable Trustee thereunder, without the consent of any holder, for any of
the following purposes: (i) to evidence the succession of another Person to
Enterprise as obligor under such Indenture; (ii) to add to the covenants of
Enterprise for the benefit of the holders of all or any series of Indenture
Securities issued under such Indenture and any related coupons or to surrender
any right or power conferred upon Enterprise by such Indenture; (iii) to add
Events of Default for the benefit of the holders of all or any series of
Indenture Securities; (iv) to add to or change any provisions of such Indenture
to facilitate the issuance of, or to liberalize the terms of, Bearer Securities,
or to permit or facilitate the issuance of Indenture Securities in
uncertificated form, provided that any such actions do not adversely affect the
holders of such Indenture Securities or any related coupons; (v) to change or
eliminate any provisions of such Indenture, provided that any such change or
elimination will become effective only when there are no such Indenture
Securities Outstanding of any series created prior thereto which are entitled to
the benefit of such provisions; (vi) to secure the Indenture Securities under
the applicable Indenture pursuant to the requirements of Section 801 of such
Indenture, or otherwise; (vii) to establish the form or terms of such Indenture
Securities of any series and any related coupons; (viii) to provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under such Indenture by more than one Trustee; (ix)
to cure any ambiguity, defect or inconsistency in such Indenture, provided such
action does not adversely affect the interests of holders of Indenture
Securities of a series issued thereunder or any related coupons in any material
respect; or (x) to supplement any of the provisions of such Indenture to the
extent necessary to permit or facilitate defeasance and discharge of any series
of Indenture Securities thereunder, provided that such action shall not
adversely affect the interests of the holders of any such Indenture Securities
and any related coupons in any material respect. (Section 901 of each Indenture)
In determining whether the holders of the requisite principal amount of
Outstanding Indenture Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the applicable Indenture or whether a
quorum is present at a meeting of holders of Indenture Securities thereunder,
(i) the principal amount of an Original Issue Discount Security that will be
deemed to be outstanding will be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof, (ii) the principal amount of an Indexed Security that may be
counted in making such determination or calculation and that will be deemed
outstanding for such purpose will be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Indexed Security pursuant to Section 301 of such Indenture and (iii)
Indenture Securities owned by Enterprise or any other obligor upon the Indenture
Securities or any Affiliate of Enterprise or of such other obligor shall be
disregarded. (Section 101 of each Indenture)
Each Indenture contains provisions for convening meetings of the holders of
Indenture Securities of a series if Indenture Securities of that series are
issuable as Bearer Securities. (Section 1501 of each Indenture) A meeting may be
called at any time by the applicable Trustee, and also, upon request, by
Enterprise or the holders of at least 10% in principal amount of the Outstanding
Indenture Securities of that series, in any such case upon notice given as
provided in the applicable Indenture. (Section 1502 of each Indenture) Except
for any consent that must be given by the holder of each Indenture Security
affected thereby, as described above, any resolution presented at a meeting (or
an adjourned meeting duly reconvened) at which a
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quorum is present may be adopted by the affirmative vote of the holders of a
majority in principal amount of the Outstanding Indenture Securities of that
series; provided, however, that any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
may be made, given or taken by the holders of a specified percentage which is
less than a majority in principal amount of the Outstanding Indenture Securities
of a series may be adopted at a meeting (or an adjourned meeting duly
reconvened) at which a quorum is present by the affirmative vote of the holders
of such specified percentage in principal amount of the Outstanding Indenture
Securities of that series. Any resolution passed or decision taken at any
meeting of holders of Indenture Securities of a series duly held in accordance
with the applicable Indenture will be binding on all holders of Indenture
Securities of that series and any related coupons. The quorum at any meeting
called to adopt a resolution will be persons holding or representing a majority
in principal amount of the Outstanding Indenture Securities of a series;
provided, however, that, if any action is to be taken at such meeting with
respect to a consent or waiver which may be given by the holders of not less
than a specified percentage in principal amount of the Outstanding Indenture
Securities of a series, the persons holding or representing such specified
percentage in principal amount of the Outstanding Indenture Securities of that
series will constitute a quorum. (Section 1504 of each Indenture)
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of holders of Indenture Securities of a series with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that the applicable Indenture expressly provides may be made, given or
taken by the holders of a specified percentage in principal amount of all
Outstanding Indenture Securities affected thereby or of the holders of such
series and one or more additional series: (i) there shall be no minimum quorum
requirement for such meeting and (ii) the principal amount of the Outstanding
Indenture Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action will be taken
into account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or taken
under such Indenture. (Section 1504 of each Indenture)
SATISFACTION AND DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Enterprise may discharge certain obligations to holders of Debt Securities
of a series that have not already been delivered to the applicable Trustee for
cancellation and that either have become due and payable or are by their terms
due and payable within one year (or scheduled for redemption within one year )
by irrevocably depositing with the applicable Trustee, in trust, funds in an
amount sufficient to pay the entire indebtedness on such Debt Securities for
principal (and premium, if any) and interest, if any, and any Additional Amounts
with respect thereto, to the date of such deposit (if such Debt Securities have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be. (Section 401 of each Indenture)
Each Indenture provides that, if the provisions of Article Fourteen are
made applicable to the Debt Securities of or within any series and any related
coupons pursuant to Section 301 thereunder, Enterprise may elect either (a) to
defease and be discharged from any and all obligations with respect to such Debt
Securities and any related coupons (except for the obligations to pay Additional
Amounts, if any, upon the occurrence of certain events of tax, assessment or
governmental charge with respect to payments on such Debt Securities and the
obligations to register the transfer or exchange of such Debt Securities and any
related coupons, to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities and any related coupons, to maintain an office or agency in
respect of such Debt Securities and any related coupons, and to hold moneys for
payment in trust) ("defeasance") (Section 1402 of each Indenture) or (b) to be
released from its obligations under any covenant specified pursuant to Section
301 with respect to such Debt Securities and any related coupons, and any
omission to comply with such obligations shall not constitute a default or an
Event of Default with respect to such Debt Securities and any related coupons
("covenant defeasance") (Section 1403), in either case upon the irrevocable
deposit by Enterprise with the applicable Trustee (or other qualifying trustee),
in trust, of (i) an amount in U.S. dollars, (ii) Government Obligations (as
defined below) applicable to such Debt Securities and coupons that through the
payment of principal and interest in accordance with their terms will provide
money in an amount, or (iii) a combination thereof in an amount, sufficient to
pay the principal of (and premium, if any) and interest, if any, on such Debt
Securities and any related coupons, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, Enterprise has
delivered to the applicable Trustee an Opinion of Counsel (as specified in the
applicable Indenture) to the effect that the holders of such Debt Securities and
any related coupons will not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance or covenant defeasance had not occurred, and such Opinion of
Counsel, in the case of defeasance under clause (a) above, must refer to and be
based upon a ruling of the Internal Revenue
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Service or a change in applicable United States federal income tax law occurring
after the date of the Indenture. (Section 1404 of each Indenture)
"Government Obligations" means securities which are (i) direct obligations
of the United States or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which are not callable or redeemable at the option of the issuer
thereof. "Government Obligations" also include a depository receipt issued by a
bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from the amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt. (Section 101 of
each Indenture)
In the event Enterprise effects covenant defeasance with respect to any
Debt Securities and any related coupons and such Debt Securities and coupons are
declared due and payable because of the occurrence of any Event of Default other
than the Event of Default described in clause (4) under "Events of Default"
(Section 501 of each Indenture) with respect to Section 1006 of each Indenture
(which Section would no longer be applicable to such Debt Securities or any
related coupons) or described in clause (4) or (6) under "Events of Default"
(Section 501 of each Indenture) with respect to any other covenant to which
there has been defeasance, the amount of Government Obligations and funds on
deposit with the applicable Trustee will be sufficient to pay amounts due on
such Debt Securities and coupons at the time of their Stated Maturity but may
not be sufficient to pay amounts due on such Debt Securities and coupons at the
time of the acceleration resulting from such Event of Default. In such case,
Enterprise would remain liable to make payment of such amounts due at the time
of, acceleration. (Section 501 of each Indenture)
If the applicable Trustee or any Paying Agent is unable to apply any money
in accordance with the applicable Indenture by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then Enterprise's obligations under such Indenture
and such Debt Securities and any related coupons shall be revived and reinstated
as though no deposit had occurred pursuant to such Indenture, until such time as
such Trustee or Paying Agent is permitted to apply all such money in accordance
with such Indenture; provided, however, that if Enterprise makes any payment of
principal of (or premium, if any) or interest, if any, on any such Debt Security
or any related coupon following the reinstatement of its obligations, Enterprise
shall be subrogated to the rights of the holders of such Debt Securities and any
related coupons to receive such payment from the money held by such Trustee or
Paying Agent.
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within a particular series and any related coupons.
BOOK-ENTRY DEBT SECURITIES
Debt Securities of a series may be issued in whole or in part in global
form that will be deposited with, or on behalf of, a depository identified in
the Prospectus Supplement. Global securities may be issued in either registered
or bearer form and in either temporary or permanent form (each a "Global
Security"). Unless otherwise provided in the Prospectus Supplement, Debt
Securities that are represented by a Global Security will be issued in
denominations of $1,000 and any integral multiple thereof, and will be issued in
registered form only, without coupons. Payments of principal of (and premium, if
any) and interest, if any, on Debt Securities represented by a Global Security
will be made by Enterprise to the applicable Trustee, and then by such Trustee
to the depository.
Enterprise anticipates that any Global Securities will be deposited with,
or on behalf of, The Depository Trust Company ("DTC"), New York, New York, that
such Global Securities will be registered in the name of DTC's nominee, and that
the following provisions will apply to the depository arrangements with respect
to any such Global Securities. Additional or differing terms of the depository
arrangements will be described in the Prospectus Supplement.
So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole holder of
the Debt Securities represented by such Global Security for all purposes under
the applicable Indenture. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in certificated
form and will not be considered the owners or holders thereof under the
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applicable Indenture. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in certificated form; such
laws may limit the transferability of beneficial interests in a Global Security.
If (i) DTC is at any time unwilling, unable or ineligible to continue as
depository and a successor depository is not appointed by Enterprise within 90
days following notice to Enterprise; (ii) Enterprise determines, in its sole
discretion, not to have any Debt Securities represented by one or more Global
Securities, or (iii) an Event of Default under the applicable Indenture has
occurred and is continuing, then Enterprise will issue individual Debt
Securities in certificated form in exchange for the relevant Global Securities.
In any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery of individual Debt Securities in
certificated form of like tenor and rank, equal in principal amount to such
beneficial interest and to have such Debt Securities in certificated form
registered in its name. Unless otherwise provided in the Prospectus Supplement,
Debt Securities so issued in certificated form will be issued in denominations
of [$1,000] or any integral multiple thereof and will be issued in registered
form only, without coupons.
The following is based on information furnished by DTC:
DTC will act as securities depository for the Debt Securities. The Debt
Securities will be issued as fully registered securities registered in the name
of Cede & Co. (DTC's partnership nominee). One fully registered Debt Security
certificate is issued with respect to each $200 million of principal amount of
the Debt Securities of a series, and an additional certificate is issued with
respect to any remaining principal amount of such series.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations ("Direct Participants").
DTC is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The rules applicable to DTC
and its Participants are on file with the SEC.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt Securities
on DTC's records. The ownership interest of each actual purchaser of each Debt
Security ("Beneficial Owner") is in turn recorded on the Direct and Indirect
Participants' records. A Beneficial Owner does not receive written confirmation
from DTC of its purchase, but such Beneficial Owner is expected to receive a
written confirmation providing details of the transaction, as well as periodic
statements of its holdings, from the Direct or Indirect Participant through
which such Beneficial Owner entered into the transaction. Transfers of ownership
interests in Debt Securities are accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners do not
receive certificates representing their ownership interests in Debt Securities,
except in the event that use of the book-entry system for the Debt Securities is
discontinued.
To facilitate subsequent transfers, the Debt Securities are registered in
the name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co. effects no
change in beneficial ownership. DTC has no knowledge of the actual Beneficial
Owners of the Debt Securities; DTC records reflect only the identity of the
Direct Participants to whose accounts Debt Securities are credited, which may or
may not be the Beneficial Owners. The Participants remain responsible for
keeping account of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to Direct Participants,
by Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners are governed by arrangements among
them, subject to any statutory or regulatory requirements as may be in effect
from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the Debt
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of interest of each Direct Participant in such issue to be
redeemed.
Neither DTC nor Cede & Co. consents or votes with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy")
to the issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede
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& Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Debt Securities are credited on the record date (identified on a
list attached to the Omnibus Proxy).
Payments of principal of (and premium, if any) and interest on the Debt
Securities will be made to DTC. DTC's practice is to credit Direct Participants'
accounts on the payable date in accordance with their respective holdings as
shown on DTC's records unless DTC has reason to believe that it will not receive
payment on the payable date. Payments by Participants to Beneficial Owners will
be governed by standing instructions and customary practices, as is the case
with securities held for the accounts of customers in bearer form or registered
in "street name", and will be the responsibility of such Participant and not of
DTC, the Paying Agent or Enterprise, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal (and
premium, if any) and interest to DTC will be the responsibility of Enterprise or
the Paying Agent, disbursement of such payments to Direct Participants will be
the responsibility of DTC, and disbursement of such payments to the Beneficial
Owners will be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Debt Securities at any time by giving reasonable notice to
Enterprise or the applicable Paying Agent. Under such circumstances, in the
event that a successor securities depository is not appointed, Debt Security
certificates are required to be printed and delivered.
Enterprise may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that Enterprise believes to be
reliable, but Enterprise takes no responsibility for the accuracy thereof.
Unless stated otherwise in the Prospectus Supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of Enterprise, any underwriter or agent, the applicable Trustee or any
applicable Paying Agent will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial interests
in a Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
RESIGNATION OF TRUSTEE
The Trustee may resign or be removed with respect to one or more series of
Indenture Securities and a successor Trustee may be appointed to act with
respect to such series. (Section 608 of each Indenture) In the event that two or
more persons are acting as Trustee with respect to different series of Indenture
Securities under one of the Indentures, each such Trustee shall be a Trustee of
a trust thereunder separate and apart from the trust administered by any other
such Trustee (Section 609 of each Indenture), and any action described herein to
be taken by the "Trustee" may then be taken by each such Trustee with respect
to, and only with respect to, the one or more series of Indenture Securities for
which it is Trustee.
SUBORDINATED INDENTURE PROVISIONS
SUBORDINATION
Upon any distribution of assets of Enterprise upon any dissolution, winding
up, liquidation or reorganization, the payment of the principal of (and premium,
if any) and interest, if any, on Subordinated Securities is to be subordinated
to the extent provided in the Subordinated Indenture in right of payment to the
prior payment in full of all Senior Indebtedness (Sections 1601 and 1602 of the
Subordinated Indenture), but the obligation of Enterprise to make payment of the
principal (and premium, if any) and interest, if any, on the Subordinated
Securities will not otherwise be affected. (Section 1604 of the Subordinated
Indenture) In addition, no payment on account of principal (or premium, if any),
sinking funds or interest, if any, may be made on the Subordinated Securities at
any time unless full payment of all amounts due in respect of the principal (and
premium, if any), sinking fund and interest on Senior Indebtedness has been made
or duly provided for in money or money's worth. (Section 1603 of the
Subordinated Indenture) In the event that, notwithstanding the foregoing, any
such payment by Enterprise is received by the Subordinated Trustee or the
holders of any of the Subordinated Securities before all Senior Indebtedness is
paid in full, such payment or distribution shall be paid over to the holders of
such Senior Indebtedness or on their behalf for application to the payment of
all such Senior Indebtedness remaining unpaid until all such Senior Indebtedness
has been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness. Subject to the payment
in full of all Senior Indebtedness upon such distribution of Enterprise, the
holders of the Subordinated Securities will be subrogated to the rights of the
holders of the Senior Indebtedness to the extent of payments made to the holders
of such Senior Indebtedness out of the distributive share of the Subordinated
Securities.
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(Section 1602 of the Subordinated Indenture) By reason of such subordination, in
the event of a distribution of assets upon insolvency, certain general creditors
of Enterprise may recover more, ratably, than holders of the Subordinated
Securities. The Subordinated Indenture provides that the subordination
provisions thereof will not apply to money and securities held in trust pursuant
to the defeasance provisions of the Subordinated Indenture. (Section 1402 of the
Subordinated Indenture). Senior Indebtedness is defined in the Subordinated
Indenture as (a) the principal of and premium, if any, and unpaid interest on
(i) indebtedness of Enterprise (including indebtedness of others guaranteed by
Enterprise), whether outstanding on the date of the Subordinated Indenture or
thereafter created, incurred, assumed or guaranteed, for money borrowed (other
than the Indenture Securities issued under the Subordinated Indenture and
securities issued under the Indenture dated as of January 1, 1998, including the
7.44% Deferrable Interest Subordinated Debentures, Series A of Enterprise),
unless in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such indebtedness is not senior or
prior in right of payment to the Subordinated Securities, and (ii) renewals,
extensions, modifications and refundings of any such indebtedness. (Section 101
of the Subordinated Indenture)
The Debt Securities are senior and prior in right of payment to the 7.44%
Deferrable Interest Subordinated Debentures, Series A of the Enterprise and any
guarantees issued in connection therewith and will be senior and prior in right
of payment to any debt securities or guarantees which may be issued in
connection with issuances of trust preferred securities by Enterprise Capital
Trust II or Enterprise Capital Trust III.
If this prospectus is being delivered in connection with a series of
Subordinated Securities, the accompanying prospectus supplement or the
information incorporated by reference will set forth the approximate amount of
Senior Indebtedness outstanding as of a recent date.
THE TRUSTEE UNDER THE INDENTURES
Enterprise maintains ordinary banking relationships with First Union
National Bank, including credit facilities and lines of credit. First Union
National Bank also serves as trustee under other indentures under which
Enterprise or its subsidiaries is the obligor.
PLAN OF DISTRIBUTION
Enterprise may sell the Offered Securities to or through underwriters,
dealers, or agents. or directly to one or more other purchasers.
The Prospectus Supplement sets forth the terms of the offering of the
particular series or issue of Offered Securities to which such Prospectus
Supplement relates, including, as applicable, (i) the name or names of any
underwriters or agents with whom Enterprise has entered into arrangements with
respect to the sale of such Offered Securities, (ii) the initial public offering
or purchase price of such Offered Securities, (iii) any underwriting discounts,
commissions and other items constituting underwriters' compensation from
Enterprise and any other discounts, concessions or commissions allowed or
reallowed or paid by any underwriters to other dealers, (iv) any commissions
paid to any agents, (v) the net proceeds to Enterprise and (vi) the securities
exchanges, if any, on which such of Offered Securities will be listed.
Unless otherwise set forth in the Prospectus Supplement relating to a
particular series or issue of Offered Securities, the obligations of the
underwriters to purchase such Offered Securities will be subject to certain
conditions precedent and each of the underwriters with respect to such Offered
Securities will be obligated to purchase all of the Offered Securities of such
series or issue allocated to it if any such Offered Securities are purchased.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
The Offered Securities may be offered and sold by Enterprise directly or
through agents designated by Enterprise from time to time. Any agent involved in
the offer or sale of the Offered Securities in respect of which this Prospectus
is delivered will be named in, and any commissions payable by the Company to
such agent will be set forth in, the applicable Prospectus Supplement. Unless
otherwise indicated in the applicable Prospectus Supplement, each such agent
will be acting on a best efforts basis for the period of its appointment.
Any underwriters, dealers or agents participating in the distribution of
the Offered Securities may be deemed to be underwriters, and any discounts or
commissions received by them on the sale or resale of Offered Securities may be
deemed to be underwriting discounts and commissions, under the Securities Act of
1933, as amended (the "Securities Act"). Underwriters, dealers and agents may be
entitled, under agreements entered into with Enterprise, to indemnification by
Enterprise against certain civil liabilities, including liabilities under the
Securities Act.
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LEGAL OPINIONS
The validity of the Securities will be passed upon for Enterprise by James
T. Foran, Esquire, Associate General Counsel or R. Edwin Selover, Esquire, Vice
President and General Counsel, and for any underwriters, dealers or agents by
Brown & Wood LLP, One World Trade Center, New York, New York 10048. Messrs.
Selover and Foran are also employees of PSE&G.
EXPERTS
The consolidated financial statements and the related financial statement
schedules of Enterprise incorporated in this Prospectus by reference from
Enterprise's Annual Report on Form 10-K for the year ended December 31, 1997
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THESE PROSPECTUSES SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED , 1998
PROSPECTUS
ENTERPRISE CAPITAL TRUST II
ENTERPRISE CAPITAL TRUST III
TRUST PREFERRED SECURITIES
GUARANTEED TO THE EXTENT THE ISSUER THEREOF HAS
AVAILABLE FUNDS AS SET FORTH HEREIN BY
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
------------------------
Enterprise Capital Trust II and Enterprise Capital Trust III, each a
statutory business trust created under the laws of the State of Delaware (each,
an "Issuer," and collectively, the "Issuers") may severally offer, from time to
time, their respective trust preferred securities (the "Preferred Securities")
representing undivided beneficial interests in the assets of such Issuer. Public
Service Enterprise Group Incorporated, a New Jersey corporation ("Enterprise"),
will be the owner of beneficial interests represented by the common securities
(the "Common Securities") of each Issuer. First Union National Bank is the
Property Trustee of each Issuer. Concurrently with the issuance by each Issuer
of its Preferred Securities, such Issuer will invest the proceeds thereof,
together with the consideration paid by Enterprise for the Common Securities of
such Issuer, in a corresponding series of Enterprise's deferrable interest
subordinated debentures (the "Debentures"). The Debentures will be subordinate
and junior in right of payment to all Senior Indebtedness (as defined herein) of
Enterprise. The Debentures will be the sole assets of each Issuer and payments
in respect of the Debentures will be the only revenues of each Issuer.
Pursuant to a guarantee agreement to be entered into by Enterprise with
respect to each series of Preferred Securities (each, a "Guarantee"), Enterprise
will agree to make payments of cash distributions with respect to the Preferred
Securities of each Issuer and payments on liquidation or redemption with respect
to such Preferred Securities but only to the extent that such Issuer holds funds
available therefor and has not made such payments. The obligations of Enterprise
under each Guarantee will be subordinate and junior in right of payment to all
general liabilities of Enterprise. As described herein, each Guarantee, together
with Enterprise's obligations under the Debentures, the Indenture relating to
such Debentures and the Amended and Restated Trust Agreement for each Issuer,
will provide for Enterprise's full, irrevocable and unconditional guarantee of
the Preferred Securities.
The Preferred Securities may be offered in amounts, at prices and on terms
to be determined at the time of offering; provided, however, that the aggregate
initial public offering price of all Preferred Securities issued pursuant to the
Registration Statement of which this Prospectus forms a part shall not exceed
$500,000,000, less the aggregate initial public offering price of any securities
of Enterprise which are sold under a separate prospectus which also constitutes
a part of the Registration Statement of which this Prospectus constitutes a
part. Certain specific terms of an Issuer's Preferred Securities will be set
forth in an accompanying Prospectus Supplement, including where applicable and
to the extent not set forth herein, the identity of such Issuer, the specific
title, the aggregate number, the distribution rate (or the method for
determining such rate) and frequency, the liquidation amount, redemption
provisions, the right, if any, of Enterprise to dissolve such Issuer and, after
satisfaction of liabilities to creditors of the Issuer, cause the corresponding
series of Debentures to be distributed to the holders of such Issuer's Preferred
Securities and Common Securities, the period during which interest on the
corresponding series of Debentures may be deferred, the initial public offering
price, and any other special terms, as well as any planned listing on a
securities exchange, of such Preferred Securities.
The Preferred Securities may be sold in a public offering to or through
underwriters or dealers designated from time to time. See "Plan of
Distribution." The names of any such underwriters or dealers involved in the
sale of the Preferred Securities of a particular Issuer, the number of Preferred
Securities to be purchased by any such underwriters or dealers and any
applicable commissions or discounts will be set forth in the accompanying
Prospectus Supplement. The net proceeds to each Issuer will also be set forth in
the accompanying Prospectus Supplement.
The accompanying Prospectus Supplement will contain information concerning
material federal income tax considerations applicable to the Preferred
Securities offered thereby.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1998.
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STATEMENT OF AVAILABLE INFORMATION
Public Service Enterprise Group Incorporated, a New Jersey corporation, is
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and, in accordance therewith, files
reports and other information with the Securities and Exchange Commission
("SEC"). Such reports and other information can be inspected and copied at the
public reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. and at its regional offices at 500 West Madison Street,
Chicago, Illinois and 7 World Trade Center, New York, New York. Copies of such
reports and other information may also be obtained from the Public Reference
Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549-1004 at
prescribed rates. Such reports and other information can also be inspected at
the New York Stock Exchange, Inc. (the "New York Stock Exchange") where certain
of Enterprise's securities are listed. In addition, the SEC maintains a Web site
that contains reports, proxy and other information regarding registrants that
file electronically with the SEC. The address of such Web site is
http://www.sec.gov.
No separate financial statements of Enterprise Capital Trust II or
Enterprise Capital Trust III, each a statutory business trust created under the
laws of the State of Delaware (each, an "Issuer," and collectively, the
"Issuers"), have been included herein. Enterprise and the Issuers do not
consider that such financial statements would be material to holders of any
Issuer's trust preferred securities (the "Preferred Securities") because each
Issuer is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than holding as trust assets the corresponding series of
deferrable interest subordinated debentures (the "Debentures") of Enterprise and
issuing Preferred Securities and common securities (the "Common Securities," and
together with the Preferred Securities, the "Trust Securities") representing
undivided beneficial interests in such Debentures. See "The Issuers,"
"Description of the Preferred Securities" and "Description of the Debentures."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by Enterprise with the SEC
pursuant to the Exchange Act, are incorporated herein by reference:
1. Enterprises's Annual Report on Form 10-K for the year ended
December 31, 1997.
2. Enterprise's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering of the related Preferred Securities shall be deemed
to be incorporated by reference in this Prospectus and the accompanying
Prospectus Supplement and shall be a part hereof and thereof from the date of
filing of such document. Any statement contained herein or therein or in a
document all or a portion of which is incorporated or deemed to be incorporated
by reference herein and therein shall be deemed to be modified or superseded for
purposes of this Prospectus and the accompanying Prospectus Supplement to the
extent that a statement contained herein or therein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
and therein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or the accompanying Prospectus
Supplement.
Enterprise undertakes to provide without charge to each person, including
any beneficial owner, to whom this Prospectus and the accompanying Prospectus
Supplement are delivered, upon written or oral request of such person, a copy of
any or all documents described above, other than exhibits to such documents not
specifically incorporated by reference therein. Such requests should be directed
to the Director-Investor Relations, Public Service Electric and Gas Company, 80
Park Plaza, T6B, P.O. Box 570, Newark, New Jersey 07101, telephone (973)
430-6503.
THE ISSUERS
Each of Enterprise Capital Trust II and Enterprise Capital Trust III is a
statutory business trust created under Delaware law pursuant to (i) a trust
agreement executed by Enterprise, as sponsor for each Issuer, and the Issuer
Trustees (as defined below) and (ii) the filing of a certificate of trust with
the Delaware Secretary of State. Each trust agreement will be amended and
restated in its entirety (each, as so amended and restated, a "Trust Agreement")
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. Each Trust Agreement will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
Each Issuer exists for the exclusive purposes of issuing and selling its
Trust Securities and using the proceeds from the sale of its Trust Securities to
acquire a corresponding series of Debentures, maintaining the status of the
Issuer as a grantor trust for federal income tax purposes and engaging in those
activities necessary, convenient or incidental to the foregoing. All
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of the Common Securities of each Issuer will be owned by Enterprise. The Common
Securities of an Issuer will rank pari passu, and payments will be made thereon
pro rata, with the Preferred Securities of that Issuer, except that upon the
occurrence and continuance of an event of default with respect to the
corresponding series of Debentures (a "Debenture Event of Default") under the
Indenture dated as of January 1, 1998 (as amended and supplemented from time to
time, the "Indenture") between Enterprise and First Union National Bank, as
trustee (the "Debenture Trustee"), the rights of the holders of such Common
Securities to payment of cash distributions ("Distributions") and payments upon
redemption and liquidation will be subordinated to the rights of the holders of
such Preferred Securities. The Indenture will be qualified as an indenture under
the Trust Indenture Act.
Each Issuer's business and affairs are conducted by three trustees, each
appointed by Enterprise as holder of the Common Securities: (i) First Union
National Bank (the "Property Trustee"); (ii) an affiliate of the Property
Trustee that has its principal place of business in the State of Delaware (the
"Delaware Trustee"); and (iii) one individual trustee who is an employee or
officer of or affiliated with Enterprise (the "Administrative Trustee," and
collectively with the Property Trustee and the Delaware Trustee, the "Issuer
Trustees"). The holder of the Common Securities, or the holders of at least a
majority in aggregate liquidation amount of an Issuer's Preferred Securities if
an event of default under the Trust Agreement (a "Trust Agreement Event of
Default") has occurred and is continuing, will be entitled to remove and replace
the Property Trustee and the Delaware Trustee. In no event will the holders of
the Preferred Securities have the right to vote to appoint, remove or replace
the Administrative Trustee, which voting rights are vested exclusively in the
holder of the Common Securities. The duties and obligations of each of the
Issuer Trustees are governed by the applicable Trust Agreement.
Pursuant to the Trust Agreement of each Issuer, Enterprise will pay all
fees and expenses related to that Issuer and the offering of its Preferred
Securities and will pay, directly or indirectly, all ongoing costs, expenses and
liabilities of that Issuer except such Issuer's obligations under its Preferred
Securities.
The principal place of business of each Issuer is 80 Park Plaza, Newark,
New Jersey 07101, and its telephone number is (973) 430-7000.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
Enterprise is a public utility holding company that neither owns nor
operates any physical properties. Enterprise has two direct, wholly owned
subsidiaries, Public Service Electric and Gas Company ("PSE&G") and Enterprise
Diversified Holdings Incorporated ("EDHI"). Enterprise's principal subsidiary,
PSE&G, is an operating public utility providing electric and gas service in
certain areas of the State of New Jersey. EDHI is the parent of Enterprise's
non-utility businesses: Community Energy Alternatives Incorporated, Public
Service Resources Corporation, Energis Resources Incorporated, Enterprise Group
Development Corporation, PSEG Capital Corporation and Enterprise Capital Funding
Corporation.
Enterprise's executive offices are located at 80 Park Plaza, Newark, New
Jersey 07101, and its telephone number is (973) 430-7000.
USE OF PROCEEDS
The proceeds to be received by the Issuers from the sale of the Preferred
Securities offered hereby will be used by the Issuers to purchase Debentures
from Enterprise. Unless otherwise specified in the accompanying Prospectus
Supplement, the proceeds from the sale of the Debentures will be used by
Enterprise for general corporate purposes.
DESCRIPTION OF THE PREFERRED SECURITIES
Pursuant to the terms of each Trust Agreement, the Issuers will issue the
Preferred Securities and the Common Securities. The Preferred Securities of an
Issuer will represent undivided beneficial interests in the assets of such
Issuer and the holders thereof will be entitled to a preference in certain
circumstances with respect to the payment of Distributions and amounts payable
on redemption or liquidation over the Common Securities of such Issuer, as well
as other benefits as described in the applicable Trust Agreement. Each of the
Issuers is a legally separate entity and the assets of one are not available to
satisfy the obligations of any other.
GENERAL
The Preferred Securities of each Issuer will rank pari passu, and payments
will be made thereon pro rata, with the Common Securities of that Issuer except
as described under " -- Subordination of Common Securities." The proceeds from
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the sale of the Preferred Securities and the Common Securities will be used by
the related Issuer to purchase a corresponding series of Debentures from
Enterprise. The Debentures will be held in trust by the Property Trustee for the
benefit of the holders of the related Trust Securities. Each Guarantee Agreement
executed by Enterprise for the benefit of the holders of each Issuer's Preferred
Securities (each, a "Guarantee") will be subordinate and junior in right of
payment to all general liabilities of Enterprise. Pursuant to each Guarantee,
Enterprise will agree to make payments of Distributions and payments on
redemption or liquidation with respect to such Preferred Securities, but only to
the extent the related Issuer holds funds available therefor and has not made
such payments. See "Description of the Guarantee."
It is anticipated that the assets of each Issuer available for distribution
to the holders of its Preferred Securities will be limited to payments from
Enterprise under the corresponding series of Debentures in which such Issuer
will invest the proceeds from the issuance and sale of its Trust Securities. See
"Description of the Debentures." If Enterprise fails to make a payment on a
series of Debentures, the related Issuer will not have sufficient funds to make
related payments, including Distributions, on the corresponding series of
Preferred Securities.
DISTRIBUTIONS
Distributions on the Preferred Securities of each Issuer will be payable at
a rate specified (or at a rate whose method of determination is described) in
the accompanying Prospectus Supplement for such Preferred Securities. Unless
otherwise specified in such Prospectus Supplement, the amount of Distributions
payable for any period will be computed on the basis of a 360-day year of twelve
30-day months.
Unless otherwise specified in such Prospectus Supplement, distributions on
the Preferred Securities will be cumulative and will accumulate from the date of
original issuance and will be payable in arrears on the dates specified in the
accompanying Prospectus Supplement except as otherwise described below. Unless
otherwise specified in such Prospectus Supplement, in the event that any date on
which Distributions are otherwise payable on the Preferred Securities is not a
Business Day (as defined below), payment of such Distributions will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect to any such delay), except that if such Business Day is
in the next succeeding calendar year, payment of such Distributions shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date (each date on which Distributions are payable
in accordance with the foregoing is referred to herein as a "Distribution
Date"). Unless otherwise specified in such Prospectus Supplement, a "Business
Day" shall mean any day other than a Saturday, Sunday or a day on which banking
institutions in The City of New York or the State of New Jersey are required by
law or executive order to remain closed.
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the securities register of the related Issuer on the
relevant record date, which, as long as the Preferred Securities remain in
book-entry-only form, will be one Business Day prior to the relevant
Distribution Date. Subject to any applicable laws and regulations and the
provisions of the applicable Trust Agreement, each such payment will be made as
described under " -- Book-Entry-Only Issuance -- The Depository Trust Company."
In the event that any Preferred Securities are not in book-entry-only form, the
relevant record date for such Preferred Securities will be specified in the
applicable Prospectus Supplement.
So long as no Debenture Event of Default has occurred and is continuing
with respect to a series of Debentures, Enterprise will have the right at any
time and from time to time to defer payments of interest by extending the
interest payment period on such series of Debentures for up to the maximum
period specified in the accompanying Prospectus Supplement for such series of
Debentures (each, an "Extension Period"), provided that any such Extension
Period shall not extend beyond the maturity or any redemption date of the
Debentures of such series. As a consequence, Distributions on the corresponding
Preferred Securities would be deferred by the Issuer thereof during such
Extension Period, but the amount of Distributions to which holders of the
Preferred Securities would be entitled will continue to accumulate at the annual
rate applicable to Distributions thereon, compounded with the same frequency
with which Distributions are payable. During any Extension Period, Enterprise
may not declare or pay any dividend on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any shares of Enterprise's capital stock.
Prior to the termination of any Extension Period, Enterprise may shorten or
further extend the interest payment period on a series of Debentures, provided
that such Extension Period, together with all such previous and further
extensions thereof, may not exceed the maximum Extension Period or extend beyond
the maturity or any redemption date of such Debentures. Upon the termination of
any Extension Period and the payment of all amounts then due, Enterprise may
elect to begin a new Extension Period, subject to the above requirements. See
"Description of the Debentures -- Option to Extend Interest Payment Period."
REDEMPTION
Upon the payment of any series of Debentures at maturity or upon
redemption, the proceeds from such payment will be applied by the Property
Trustee to redeem a like amount of the corresponding Trust Securities of the
Issuer thereof at a
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redemption price (the "Redemption Price") equal to the liquidation amount of
such Trust Securities plus all accumulated and unpaid Distributions to the
redemption date (the "Redemption Date"). The redemption terms of a particular
series of Debentures and the corresponding Trust Securities will be set forth in
the accompanying Prospectus Supplement.
If less than all the Trust Securities of the Issuer thereof are to be
redeemed on a Redemption Date, then the aggregate amount of such Trust
Securities to be redeemed shall be selected by the Property Trustee among such
Issuer's Preferred Securities and Common Securities pro rata based on the
respective aggregate liquidation amounts of such Preferred Securities and Common
Securities, subject to the provisions of " -- Subordination of Common
Securities."
REDEMPTION PROCEDURES
Notice of any redemption of Trust Securities will be given by the Property
Trustee to the holders of such Trust Securities to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date. If a notice of redemption is
given with respect to any Trust Securities, then, to the extent funds are
available therefor, the Issuer thereof will irrevocably deposit with the paying
agent for such Trust Securities funds sufficient to pay the applicable
Redemption Price for the Trust Securities being redeemed on the Redemption Date
and will give such paying agent irrevocable instructions and authority to pay
the Redemption Price to the holders of such Trust Securities upon surrender
thereof. Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the holders of such Trust Securities on the relevant record dates for the
related Distribution Dates.
If notice of redemption shall have been given and funds irrevocably
deposited as required, then upon the date of such deposit, all rights of the
holders of such Trust Securities so called for redemption will cease, except the
right of the holders of such Trust Securities to receive the Redemption Price,
but without interest thereon, and such Trust Securities will cease to be
outstanding. In the event that any Redemption Date for Trust Securities is not a
Business Day, then the Redemption Price will be payable on the next succeeding
day that 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, the Redemption Price will be payable on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Issuer thereof or by Enterprise pursuant to the Guarantee as
described under "Description of the Guarantee," Distributions on such Trust
Securities will continue to accumulate at the then applicable rate from the
original Redemption Date to the date of payment, in which case the actual
payment date will be considered the Redemption Date for purposes of calculating
the Redemption Price.
Subject to applicable law, Enterprise or its subsidiaries may at any time
and from time to time purchase outstanding Preferred Securities by tender, in
the open market or by private agreement.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each Issuer's
Trust Securities, as applicable, shall be made pro rata based on the respective
aggregate liquidation amounts of such Trust Securities; provided, however, that
if a Debenture Event of Default has occurred and is continuing with respect to
the corresponding series of Debentures, no payment of any Distribution on, or
Redemption Price of, any of such Issuer's Common Securities, and no other
payment on account of the liquidation of such Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions on
all of such Issuer's outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of a redemption, the
full amount of such Redemption Price on all of such Issuer's outstanding
Preferred Securities shall have been made or provided for, and all funds
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions on, or Redemption Price of, all of such Issuer's
outstanding Preferred Securities then due and payable.
If a Debenture Event of Default has occurred and is continuing with respect
to a series of Debentures, the holder of the related Issuer's Common Securities
will be deemed to have waived any right to act with respect to such Debenture
Event of Default until the effect of such Debenture Event of Default has been
cured, waived or otherwise eliminated with respect to the Preferred Securities.
Until any such Debenture Event of Default has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the holders of
the corresponding Preferred Securities and not on behalf of Enterprise, as
holder of such Common Securities, and only the holders of such Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.
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LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to its Trust Agreement, each Issuer shall be dissolved on the
earliest to occur of: (i) the expiration of the term of such Issuer; (ii) the
bankruptcy, dissolution or liquidation of Enterprise or an acceleration of the
maturity of the corresponding series of Debentures held by such Issuer; (iii) if
provided for in the accompanying Prospectus Supplement, upon the election of
Enterprise to dissolve such Issuer and, after satisfaction of liabilities to
creditors of such Issuer, cause the distribution of the corresponding series of
Debentures to the holders of such Issuer's Trust Securities; (iv) the redemption
of all of such Issuer's Trust Securities; and (v) an order for the dissolution
of such Issuer shall have been entered by a court of competent jurisdiction. The
election of Enterprise pursuant to clause (iii) above shall be made by
Enterprise giving written notice to the Issuer Trustees not less than 30 days
prior to the date of distribution of the corresponding series of Debentures and
shall be accompanied by an opinion of counsel that such event will not be a
taxable event to the holders of the Trust Securities for federal income tax
purposes.
If a dissolution event occurs as described in clause (i), (ii) or (v) above
with respect to any Issuer, such Issuer shall be liquidated by the Issuer
Trustees as expeditiously as the Issuer Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of such Issuer as
provided by applicable law, to the holders of its Trust Securities a like amount
of the corresponding series of Debentures, unless such distribution is
determined by the Property Trustee not to be practical, in which event such
holders will be entitled to receive out of the assets of such Issuer available
for distribution to holders, after satisfaction of liabilities to creditors of
such Issuer as provided by applicable law, an amount equal to, in the case of
holders of Trust Securities, the aggregate liquidation amount per Trust Security
specified in the accompanying Prospectus Supplement plus accumulated and unpaid
Distributions thereon to the date of payment (such amount, the "Liquidation
Distribution"). If the Liquidation Distribution with respect to an Issuer's
Preferred Securities can be paid only in part because such Issuer has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable by such Issuer on such Preferred
Securities shall be paid on a pro rata basis. The holders of such Issuer's
Common Securities will be entitled to receive the Liquidation Distribution upon
any such liquidation pro rata with the holders of its Preferred Securities,
except that if a Debenture Event of Default has occurred and is continuing the
Preferred Securities shall have a priority over the Common Securities with
respect to payment of such Liquidation Distribution.
TRUST AGREEMENT EVENT OF DEFAULT; NOTICE
A Debenture Event of Default shall constitute a Trust Agreement Event of
Default with respect to the Preferred Securities issued by the related Issuer
under its Trust Agreement.
Within 90 days after the occurrence of any Trust Agreement Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Trust Agreement Event of Default to the holders of the
corresponding Trust Securities, the Administrative Trustee and Enterprise,
unless such Trust Agreement Event of Default shall have been cured or waived.
Enterprise and the Administrative Trustee are required to file annually with the
Property Trustee a certificate as to whether or not they are in compliance with
all the conditions and covenants applicable to them under each Trust Agreement.
Under each Trust Agreement, if the Property Trustee has failed to enforce
its rights under the Trust Agreement or the Indenture to the fullest extent
permitted by law and subject to the terms of the Trust Agreement and the
Indenture, any holder of the corresponding Preferred Securities may institute a
legal proceeding directly to enforce the Property Trustee's rights under the
Trust Agreement or the Indenture with respect to Debentures having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such holder without first instituting a legal proceeding against the Property
Trustee or any other person. To the extent that any action under the Indenture
is entitled to be taken by the holders of at least a specified percentage of the
principal amount of a series of Debentures, holders of the corresponding
Preferred Securities may take such action if such action is not taken by the
Property Trustee. Notwithstanding the foregoing, if a Trust Agreement Event of
Default attributable to Enterprise's failure to pay principal of or premium, if
any, or interest on the Debentures of any series has occurred and is continuing,
then each holder of Preferred Securities of the corresponding series may
institute a legal proceeding directly against Enterprise for enforcement of any
such payment to such holder, all as provided in the Indenture.
If a Debenture Event of Default has occurred and is continuing with respect
to a series of Debentures, the corresponding Preferred Securities shall have a
preference over the related Issuer's Common Securities with respect to the
payment of Distributions and amounts payable on redemption and liquidation as
described above. See " -- Liquidation Distribution Upon Dissolution" and " --
Subordination of Common Securities."
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REMOVAL OF ISSUER TRUSTEES
Unless a Trust Agreement Event of Default has occurred and is continuing,
any Issuer Trustee may be removed and replaced at any time by the holder of the
Common Securities. If a Trust Agreement Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed and
replaced at such time only by the holders of at least a majority in aggregate
liquidation amount of the outstanding Preferred Securities. In no event will the
holders of the Preferred Securities have the right to vote to appoint, remove or
replace the Administrative Trustee, which voting rights are vested exclusively
in the holder of the Common Securities. No resignation or removal of an Issuer
Trustee and no appointment of a successor trustee shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless a Trust Agreement Event of Default has occurred and is continuing,
at any time and from time to time, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property (as defined in each Trust Agreement) may at such time be
located, the holder of the Common Securities and the Administrative Trustee
shall have the power (i) to appoint one or more persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to act as separate trustee of any such
Trust Property, in either case with such powers as may be provided in the
instrument of appointment, and (ii) to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the applicable Trust Agreement. If a Trust
Agreement Event of Default has occurred and is continuing, only the Property
Trustee shall have power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any corporation or other entity into which any Issuer Trustee may be merged
or converted or with which it may be consolidated, or any corporation or other
entity resulting from any merger, conversion or consolidation to which any
Issuer Trustee shall be a party, or any corporation or other entity succeeding
to all or substantially all the corporate trust business of any Issuer Trustee,
shall be the successor of such Issuer Trustee under the applicable Trust
Agreement, provided such corporation or other entity shall be otherwise
qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUERS
An Issuer may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other entity,
except as described below or in " -- Liquidation Distribution Upon Dissolution."
An Issuer may, at the request of Enterprise, with the consent of the
Administrative Trustee and without the consent of the holders of its Preferred
Securities, merge with or into, consolidate, amalgamate, or be replaced by a
trust organized as such under the laws of any State, provided that (i) such
successor entity either (a) expressly assumes all of the obligations of such
Issuer with respect to such Preferred Securities or (b) substitutes for such
Preferred Securities other securities substantially similar to such Preferred
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as such Preferred Securities rank with respect to the payment of
Distributions and payments upon redemption and liquidation, (ii) Enterprise
expressly appoints a trustee of such successor entity possessing the same powers
and duties as the Property Trustee with respect to the corresponding series of
Debentures, (iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which such Preferred Securities are
then listed, (iv) such merger, consolidation, amalgamation or replacement does
not cause such Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of such Preferred
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially similar to that of such
Issuer, (vii) prior to such merger, consolidation, amalgamation or replacement,
Enterprise has received an opinion of counsel to such Issuer to the effect that
(A) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of such Preferred
Securities (including any Successor Securities) in any material respect, and (B)
following such merger, consolidation, amalgamation or replacement, neither such
Issuer nor such successor entity will be required to register as an investment
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and (viii) Enterprise or any permitted successor assignee owns
all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the related Guarantee and Trust Agreement.
Notwithstanding the foregoing, an Issuer shall not,
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except with the consent of all holders of its Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by, any other entity, or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger or replacement would cause such
Issuer or the successor entity not to be classified as a grantor trust for
federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as provided below and under " -- Mergers, Consolidations,
Amalgamations or Replacements of the Issuers" and "Description of the Guarantee
- -- Amendments and Assignment" and as otherwise required by law and the
applicable Trust Agreement, the holders of the Preferred Securities will have no
voting rights.
A Trust Agreement may be amended from time to time by Enterprise and the
Issuer Trustees, without the consent of the holders of the corresponding
Preferred Securities, (i) to cure any ambiguity, defect or inconsistency or (ii)
to make any other change that does not adversely affect in any material respect
the interests of any holder of such Preferred Securities. A Trust Agreement may
be amended by Enterprise and the Issuer Trustees in any other respect, with the
consent of the holders of at least a majority in aggregate liquidation amount of
such Preferred Securities, except to (i) change the amount, timing or currency
or otherwise adversely affect the method of payment of any Distribution or
Liquidation Distribution, (ii) restrict the right of a holder of any such
Preferred Security to institute suit for enforcement of any Distribution,
Redemption Price or Liquidation Distribution, (iii) change the purpose of the
related Issuer, (iv) authorize the issuance of any additional beneficial
interests in the related Issuer, (v) change the redemption provisions, (vi)
change the conditions precedent for Enterprise to elect to dissolve the related
Issuer and distribute the corresponding series of Debentures to the holders of
such Preferred Securities or (vii) affect the limited liability of any holder of
such Preferred Securities, which amendment requires the consent of each holder
of the related Preferred Securities affected thereby. Notwithstanding the
foregoing, no amendment may be made without receipt by the related Issuer of an
opinion of counsel to the effect that such amendment will not affect such
Issuer's status as a grantor trust for federal income tax purposes or its
exemption from regulation as an investment company under the Investment Company
Act.
The Issuer Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee or
executing any trust or power conferred on the Debenture Trustee with respect to
the corresponding series of Debentures, (ii) waive any past default pursuant to
Section 6.04 of the Indenture, (iii) exercise any right to rescind or annul an
acceleration of the principal of the corresponding series of Debentures or (iv)
consent to any amendment or modification of the Indenture, where such consent
shall be required, without, in each case, obtaining the consent of the holders
of at least a majority in aggregate liquidation amount of all outstanding
Preferred Securities of the corresponding series; provided, however, that where
a consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior consent of each holder of the corresponding Preferred
Securities. The Issuer Trustees shall not revoke any action previously
authorized or approved by a vote of the holders of such Preferred Securities
except by subsequent vote of the holders thereof. The Property Trustee shall
notify all holders of Preferred Securities of any notice received from the
Debenture Trustee as a result of the Issuer thereof being the holder of the
corresponding Debentures. In addition to obtaining the consent of the holders of
the Preferred Securities of the corresponding series, prior to taking any of the
foregoing actions, the Issuer Trustees shall obtain an opinion of counsel to the
effect that the related Issuer will not be classified as an association taxable
as a corporation or a partnership for federal income tax purposes on account of
such action and will continue to be classified as a grantor trust for federal
income tax purposes.
Any required consent of holders of Preferred Securities may be given at a
meeting of holders of such Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such holders is to be taken, to
be given to each holder of record of such Preferred Securities in the manner set
forth in the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under certain circumstances, any Preferred Securities that are owned
by Enterprise, the Issuer Trustees or any affiliate of Enterprise or any Issuer
Trustee shall, for purposes of such vote or consent, be treated as if they were
not outstanding.
BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary for
all of the Preferred Securities. The Preferred Securities will be issued only as
fully-registered securities registered in the name of Cede & Co. (DTC's nominee)
as
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the holder thereof. One or more fully-registered global securities will be
issued for the Preferred Securities of each Issuer, representing in the
aggregate the total number of such Issuer's Preferred Securities, and will be
deposited with DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange,
the American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through or
maintain custodial relationships with Direct Participants, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the SEC.
Purchases of Preferred Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
each Preferred Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchases, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Preferred Securities.
Transfers of ownership interests in the Preferred Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Preferred Securities, except in the event that use
of the book-entry system for the Preferred Securities of such Issuer is
discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such Preferred Securities are credited, which may or may not
be the Beneficial Owners. The Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants and by Direct and
Indirect Participants to Beneficial Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices shall be sent to Cede & Co. as the registered holder of
the Preferred Securities. If less than all of an Issuer's Preferred Securities
are being redeemed, DTC's practice is to determine by lot the amount of the
interest of each Direct Participant to be redeemed.
Although voting with respect to the Preferred Securities is limited to the
holders of record of the Preferred Securities, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to the Preferred Securities. Under its usual procedures, DTC would mail
an omnibus proxy (the "Omnibus Proxy") to the Property Trustee as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts such
Preferred Securities are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
Payments in respect of the Preferred Securities will be made in immediately
available funds by the Property Trustee on behalf of the related Issuer to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Participant and not of DTC, the Property Trustee, the Issuer of the
relevant Preferred Securities or Enterprise, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payments in
respect of the Preferred Securities to DTC are the responsibility of the
Property Trustee on behalf of the related Issuer, disbursement of such payments
to Direct Participants is the responsibility of DTC and disbursements of such
payments to the Beneficial Owners is the responsibility of the Direct and
Indirect Participants.
DTC may discontinue providing its services as securities depositary with
respect to any series of Preferred Securities at any time by giving reasonable
notice to the Property Trustee and Enterprise. In the event that a successor
securities depositary is not obtained, definitive Preferred Security
certificates representing such Preferred Securities are required to be printed
and
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delivered. Enterprise, at its option, may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor depositary) as a
result of such discontinuance or as a result of DTC's ineligibility to so act,
in which case definitive certificates for such Preferred Securities will be
issued. After a Trust Agreement Event of Default, the related Issuer will issue
definitive certificates for such Issuer's Preferred Securities. Upon
distribution of definitive Preferred Securities certificates, owners of such
Preferred Securities will become the registered holders of such Preferred
Securities.
The information set forth above concerning DTC and DTC's book-entry system
has been obtained from sources that the Issuers and Enterprise believe to be
accurate, but the Issuers and Enterprise assume no responsibility for the
accuracy thereof. Neither the Issuers nor Enterprise has any responsibility for
the performance by DTC or its Participants of their respective obligations as
described herein or under the rules and procedures governing their respective
operations.
In the event that the book-entry-only system is discontinued, the payment
of any Distribution, Redemption Price and Liquidation Distribution in respect of
a series of Preferred Securities will be payable in the manner described in the
accompanying Prospectus Supplement, and the following provisions would apply.
The Property Trustee shall keep the registration books for such Preferred
Securities at its corporate office. Such Preferred Securities may be transferred
or exchanged for one or more Preferred Securities upon surrender thereof at the
corporate office of the Property Trustee by the holders or their duly authorized
attorneys or legal representatives. Upon surrender of any Preferred Securities
to be transferred or exchanged, the Property Trustee shall record the
registration of transfer or exchange in the registration books and shall deliver
new Preferred Securities appropriately registered. The Property Trustee shall
not be required to register the transfer of any Preferred Securities that have
been called for redemption or on or after the liquidation date. The Issuers and
the Property Trustee shall be entitled to treat the holders of the related
Preferred Securities, as their names appear in the registration books, as the
owners of those Preferred Securities for all purposes under the applicable Trust
Agreement.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee is the sole Trustee under each Trust Agreement for
purposes of the Trust Indenture Act and shall have and be subject to all of the
duties and responsibilities specified with respect to an indenture trustee under
the Trust Indenture Act. The Property Trustee, other than during the occurrence
and continuance of a Trust Agreement Event of Default, undertakes to perform
only such duties as are specifically set forth in each Trust Agreement and, upon
a Trust Agreement Event of Default, must use the same degree of care and skill
in the exercise thereof as a prudent person would exercise or use in the conduct
of his or her own affairs. Subject to this provision, the Property Trustee is
under no obligation to exercise any of the powers vested in it by any Trust
Agreement at the request of any holder of Preferred Securities unless it is
offered reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred thereby. If no Trust Agreement Event of
Default has occurred and is continuing, and the Property Trustee is required to
decide between alternative courses of action, construe ambiguous provisions in a
Trust Agreement or is unsure of the application of any provision of a Trust
Agreement, and the matter is not one on which holders of Preferred Securities
are entitled under such Trust Agreement to vote, then the Property Trustee shall
take such action as is directed by Enterprise and, if not so directed, may take
such action as it deems advisable and in the best interests of the holders of
the corresponding Trust Securities and will have no liability except for its own
negligent action, negligent failure to act or willful misconduct.
MISCELLANEOUS
The Administrative Trustee is authorized and directed to conduct the
affairs of and to operate the Issuers in such a way that (i) no Issuer will be
deemed to be an "investment company" required to be registered under the
Investment Company Act or to be taxed as a corporation or partnership for
federal income tax purposes, (ii) each Issuer will be classified as a grantor
trust for federal income tax purposes and (iii) the Debentures held by such
Issuers will be treated as indebtedness of Enterprise for federal income tax
purposes. In this connection, Enterprise and the Administrative Trustee are
authorized to take any action, not inconsistent with applicable law, the
applicable certificate of trust of the related Issuer or the applicable Trust
Agreement, that Enterprise and the Administrative Trustee determine in their
discretion to be necessary or desirable for such purposes, even if such action
adversely affects the interests of the holders of the corresponding Preferred
Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
No Issuer may borrow money, issue debt, execute mortgages or pledge any of
its assets.
Except as otherwise provided in the Trust Agreements, any action requiring
the consent or vote of the Issuer Trustees shall be approved by the
Administrative Trustee.
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GOVERNING LAW
The Trust Agreements will be governed by and construed in accordance with
the laws of the State of Delaware.
DESCRIPTION OF THE GUARANTEE
Each Guarantee will be executed and delivered by Enterprise concurrently
with the issuance by each Issuer of its Preferred Securities for the benefit of
the holders from time to time of such Preferred Securities. Each Guarantee will
be qualified as an indenture under the Trust Indenture Act and First Union
National Bank will act as indenture trustee (the "Guarantee Trustee") under each
Guarantee for the purposes of compliance with the Trust Indenture Act. Reference
under this caption to Preferred Securities means the Preferred Securities to
which a Guarantee relates. The Guarantee Trustee will hold each Guarantee for
the benefit of the holders of the related Issuer's Preferred Securities.
GENERAL
Enterprise will irrevocably agree, to the extent set forth in each
Guarantee, to pay in full, to the holders of the related Issuer's Preferred
Securities, the Guarantee Payments (as defined below) (except to the extent
previously paid), as and when due, regardless of any defense, right of set-off
or counterclaim which such Issuer may have or assert. The following payments, to
the extent not paid by an Issuer (the "Guarantee Payments"), will be subject to
the applicable Guarantee (without duplication): (i) any accumulated and unpaid
Distributions required to be paid on such Preferred Securities, to the extent
that such Issuer has funds available therefor, (ii) the Redemption Price to the
extent that such Issuer has funds available therefor, and (iii) upon a voluntary
or involuntary dissolution and liquidation of such Issuer (unless the
corresponding series of Debentures are distributed to holders of such Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount specified
in the Prospectus Supplement per Preferred Security plus all accumulated and
unpaid Distributions on the Preferred Securities to the date of payment, to the
extent the Issuer has funds available therefor and (b) the amount of assets of
such Issuer remaining available for distribution to holders of Preferred
Securities upon a dissolution and liquidation of such Issuer. Enterprise's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by Enterprise to the holders of the corresponding Preferred
Securities or by causing the related Issuer to pay such amounts to such holders.
While the assets of Enterprise will not be available pursuant to the Guarantee
for the payment of any Distribution, Liquidation Distribution or Redemption
Price on any Preferred Securities if the related Issuer does not have funds
available therefor as described above, Enterprise has agreed under the
applicable Trust Agreement to pay all expenses of such Issuer except such
Issuer's obligations under its Preferred Securities. Accordingly, the applicable
Guarantee, together with the backup undertakings consisting of Enterprise's
obligations under the applicable Trust Agreement, the corresponding series of
Debentures and the Indenture, provide for Enterprise's full, irrevocable and
unconditional guarantee of the Preferred Securities.
No single document executed by Enterprise in connection with the issuance
of a series of Preferred Securities will provide for Enterprise's full,
irrevocable and unconditional guarantee of the Preferred Securities. It is only
the combined operation of Enterprise's obligations under the applicable
Guarantee, the applicable Trust Agreement, the corresponding series of
Debentures and the Indenture that has the effect of providing a full,
irrevocable and unconditional guarantee of an Issuer's obligations under its
Preferred Securities. See "Relationship Among the Preferred Securities, the
Debentures and the Guarantee."
STATUS OF THE GUARANTEE
Each Guarantee will constitute an unsecured obligation of Enterprise and
will rank subordinate and junior in right of payment to all general liabilities
of Enterprise. The Trust Agreements provide that each holder of Preferred
Securities by acceptance thereof agrees to the subordination provisions and
other terms of the related Guarantee. Each Guarantee will rank pari passu with
all other Guarantees issued by Enterprise. Each Guarantee will constitute a
guarantee of payment and not of collection (i.e., the guaranteed party may
institute a legal proceeding directly against Enterprise to enforce its rights
under the Guarantee without first instituting a legal proceeding against any
other person or entity). Each Guarantee will not be discharged except by payment
of the Guarantee Payments in full to the extent not previously paid or upon
distribution to the holders of the Preferred Securities of the corresponding
series of Debentures pursuant to the applicable Trust Agreement.
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AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the corresponding Preferred Securities (in which case
no consent of the holders will be required), no Guarantee may be amended without
the prior approval of the holders of at least a majority in aggregate
liquidation amount of such Preferred Securities (excluding any Preferred
Securities held by Enterprise or an affiliate thereof). The manner of obtaining
any such approval will be as set forth under "Description of the Preferred
Securities -- Voting Rights; Amendment of Trust Agreement." All agreements
contained in each Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of Enterprise and shall inure to the benefit of the
holders of the corresponding Preferred Securities.
GUARANTEE EVENTS OF DEFAULT
An event of default under a Guarantee (a "Guarantee Event of Default") will
occur upon the failure of Enterprise to perform any of its payment or other
obligations thereunder, provided that except with respect to a Guarantee Event
of Default resulting from a failure to make any of the Guarantee Payments,
Enterprise shall have received notice of such Guarantee Event of Default from
the Guarantee Trustee and shall not have cured such Guarantee Event of Default
within 60 days after receipt of such notice. The holders of at least a majority
in aggregate liquidation amount of the corresponding Preferred Securities
(excluding any Preferred Securities held by Enterprise or an affiliate thereof)
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of such
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under such Guarantee.
Any holder of the corresponding Preferred Securities may institute a legal
proceeding directly against Enterprise to enforce such holder's rights under
such Guarantee without first instituting a legal proceeding against the related
Issuer, the Guarantee Trustee or any other person or entity.
Enterprise, as guarantor, will be required to file annually with the
Guarantee Trustee a certificate as to whether or not Enterprise is in compliance
with all the conditions and covenants applicable to it under each Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a Guarantee Event of Default, undertakes to perform only such duties as are
specifically set forth in each Guarantee and, upon a Guarantee Event of Default,
must exercise such of the rights and powers vested in it by the Guarantee and to
use the same degree of care and skill in the exercise thereof as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the Guarantee Trustee is under no obligation to exercise any
of the powers vested in it by any Guarantee at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEE
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price or Liquidation Distribution for the
corresponding Preferred Securities or upon distribution of the corresponding
series of Debentures to the holders of the corresponding Preferred Securities.
Each Guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of the corresponding Preferred Securities must
restore payment of any sums paid under such Preferred Securities or such
Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the
laws of the State of New Jersey.
DESCRIPTION OF THE DEBENTURES
GENERAL
The Debentures will be issued in one or more series under the Indenture.
Each series of Debentures will rank pari passu with all other series of
Debentures. Each series of Debentures will be unsecured and will rank
subordinate and junior in right of payment, to the extent and in the manner set
forth in the Indenture, to all Senior Indebtedness (as defined below) of
Enterprise. See " -- Subordination." The Indenture does not limit the incurrence
or issuance of Senior Indebtedness by Enterprise.
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Enterprise is a holding company whose assets consist principally of the
stock in its wholly owned subsidiaries, PSE&G and EDHI. Therefore, Enterprise's
rights and the rights of its creditors, including the holders of the Debentures,
to participate in the assets of any subsidiary upon the latter's liquidation or
recapitalization or otherwise will be subject to the prior claims of the
subsidiary's creditors, except to the extent that claims of Enterprise itself as
a creditor of the subsidiary may be recognized.
The accompanying Prospectus Supplement will describe the following terms of
any series of Debentures: (i) the title of such series of Debentures; (ii) the
aggregate principal amount of such series of Debentures; (iii) the date or dates
on which the principal of such series of Debentures shall be payable or the
method of determination thereof; (iv) the rate or rates, if any, at which such
series of Debentures shall bear interest, the interest payment dates on which
any such interest shall be payable or the method by which any of the foregoing
shall be determined; (v) any terms regarding redemption; (vi) the maximum
Extension Period for such series of Debentures; and (vii) any other terms of
such series of Debentures not inconsistent with the provisions of the Indenture.
Certain federal income tax consequences and special considerations relating
to the applicable series of Debentures will be described in the accompanying
Prospectus Supplement.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Under the Indenture, Enterprise shall have the right at any time and from
time to time, so long as no Debenture Event of Default has occurred and is
continuing with respect to such series of Debentures, to defer payments of
interest by extending the interest payment period for such series of Debentures
for up to the maximum Extension Period provided for such series of Debentures,
provided that no Extension Period shall extend beyond the maturity or any
redemption date of such series of Debentures. At the end of the Extension
Period, Enterprise shall be obligated to pay all interest then accrued and
unpaid (together with interest thereon to the extent permitted by applicable
law). During any Extension Period, Enterprise may not declare or pay any
dividend on, or redeem, purchase, acquire, or make a liquidation payment with
respect to, any shares of Enterprise's capital stock. Prior to the termination
of any Extension Period, Enterprise may shorten or further extend the interest
payment period, provided that such Extension Period, together with all such
previous and further extensions thereof, may not exceed the maximum Extension
Period for such series of Debentures or extend beyond the maturity or any
redemption date of such series of Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, Enterprise may elect
to begin a new Extension Period, subject to the above requirements. Enterprise
shall be required to give notice to the Debenture Trustee and cause the
Debenture Trustee to give notice to the holders of the applicable series of
Debentures of its election to begin an Extension Period, or 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 corresponding series
of Preferred Securities or payment of interest on such Debentures is required to
be given to any national securities exchange on which such Debentures or such
Preferred Securities are then listed or other applicable self-regulatory
organization but in any event not less than two Business Days prior to such
record date.
SUBORDINATION
All payments by Enterprise in respect of the Debentures shall be
subordinated to the prior payment in full of all amounts payable on Senior
Indebtedness. The term "Senior Indebtedness" means (i) the principal of and
premium, if any, in respect of (a) indebtedness of Enterprise for money borrowed
and (b) indebtedness evidenced by securities, debentures, bonds or other similar
instruments issued by Enterprise; (ii) all capital lease obligations of
Enterprise; (iii) all obligations of Enterprise issued or assumed as the
deferred purchase price of property, all conditional sale obligations of
Enterprise and all obligations of Enterprise under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business); (iv) certain obligations of Enterprise for the reimbursement of any
obligation, any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction entered into in the ordinary course of
business of Enterprise; (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, Enterprise is responsible or liable as obligor, guarantor or
otherwise (other than each Guarantee and obligations ranking pari passu with
such Guarantee); and (vi) certain obligations of the type referred to in clauses
(i) through (v) of other persons secured by any lien on any property or asset of
Enterprise (whether or not such obligation is assumed by Enterprise), except for
any such indebtedness that is by its terms subordinated to or pari passu with
the Debentures and for indebtedness between or among Enterprise and its
affiliates.
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Upon any payment or distribution of assets or securities of Enterprise,
upon any dissolution or winding-up or total or partial liquidation or
reorganization of Enterprise, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts payable
on Senior Indebtedness (including any interest accruing on such Senior
Indebtedness subsequent to the commencement of a bankruptcy, insolvency or
similar proceeding) shall be paid in full before the holders of the Debentures
or the Debenture Trustee on behalf of such holders shall be entitled to receive
from Enterprise any payment of principal of, premium, if any, or interest on,
the Debentures or distributions of any assets or securities.
No direct or indirect payment by or on behalf of Enterprise of principal
of, premium, if any, or interest on, the Debentures, 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 or (ii) any other default pursuant to
which the maturity of Senior Indebtedness has been accelerated and, in either
case, requisite notice has been given to the Debenture Trustee and such default
shall not have been cured or waived by or on behalf of the holders of such
Senior Indebtedness.
If the Debenture Trustee or any holder of the Debentures shall have
received any payment on account of the principal of, premium, if any, or
interest on, the Debentures when such payment is prohibited and before all
amounts payable on Senior Indebtedness are paid in full, then such payment shall
be received and held in trust for the holders of Senior Indebtedness and shall
be paid to the holders of the Senior Indebtedness remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full.
Nothing in the Indenture shall limit the right of the Debenture Trustee or
the holders of the Debentures to take any action to accelerate the maturity of
the Debentures or to pursue any rights or remedies against Enterprise, provided
that all Senior Indebtedness shall be paid before holders of the Debentures are
entitled to receive any payment from Enterprise of principal of, premium, if
any, or interest on, the Debentures.
Upon the payment in full of all Senior Indebtedness, the holders of the
Debentures shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of Enterprise made
on such Senior Indebtedness until the Debentures shall be paid in full.
CERTAIN COVENANTS OF ENTERPRISE
Enterprise will covenant that it may not declare or pay any dividend on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
shares of Enterprise's capital stock (i) during an Extension Period, (ii) if
there has occurred and is continuing any event that is, or, with the giving of
notice or the lapse of time or both would constitute, a Debenture Event of
Default or (iii) if Enterprise is in default with respect to its payment or
other obligations under any Guarantee. See " -- Debenture Events of Default" and
"Description of the Guarantee -- Guarantee Events of Default."
Any waiver of any Debenture Event of Default will require the approval of
at least a majority of the aggregate principal amount of the corresponding
series of Debentures or, if such Debentures are held by an Issuer, the approval
of at least a majority in aggregate liquidation amount of the Preferred
Securities of such Issuer; provided, however, that a Debenture Event of Default
resulting from the failure to pay the principal of, premium, if any, or interest
on, such Debentures may not be waived.
MODIFICATION OF THE INDENTURE
From time to time, Enterprise and the Debenture Trustee, without notice to
or the consent of any holders of Debentures, may amend or supplement the
Indenture for any of the following purposes: (i) to cure any ambiguity, defect
or inconsistency; (ii) to comply with the provisions of the Indenture regarding
consolidation, merger or sale, conveyance, transfer or lease of the properties
as an entirety or substantially as an entirety of Enterprise; (iii) to provide
for uncertificated Debentures in addition to or in place of certificated
Debentures; (iv) to make any other change that does not in the reasonable
judgment of Enterprise adversely affect the rights of any holder of the
Debentures; (v) to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the Trust Indenture Act; or (vi) to set
forth the terms and conditions, which shall not be inconsistent with the
Indenture, of any series of Debentures and the form of Debentures of such
series.
In addition, Enterprise and the Debenture Trustee may modify the Indenture
or any supplemental indenture or waive future compliance by Enterprise with the
provisions of the Indenture, with the consent of the holders of at least a
majority of the aggregate principal amount of the Debentures of each series
affected thereby, provided that no such modification, without the consent of
each holder of such Debentures, may (i) reduce the principal amount of such
Debentures, (ii) reduce the
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principal amount of outstanding Debentures of any series the holders of which
must consent to an amendment of the Indenture or a waiver, (iii) change the
stated maturity of the principal of, or interest on, or the rate of interest on,
such Debentures, (iv) change the redemption provisions applicable to such
Debentures adversely to the holders thereof, (v) impair the right to institute
suit for the enforcement of any payment with respect to such Debentures, (vi)
change the currency in which payments with respect to such Debentures are to be
made, or (vii) change the subordination provisions applicable to such Debentures
adversely to the holders thereof, provided that if such Debentures are held by
an Issuer, no modification shall be made that adversely affects the holders of
the Preferred Securities of such Issuer, and no waiver of any Debenture Event of
Default with respect to such Debentures or compliance with any covenant under
the Indenture shall be effective, without the prior consent of the holders of at
least a majority of the aggregate liquidation amount of the Preferred Securities
of such Issuer or the holder of each such Preferred Security, as applicable.
DEBENTURE EVENTS OF DEFAULT
The following are "Debenture Events of Default" with respect to the
Debentures of any series: (i) default for 30 days in payment of any interest on
any Debenture of that series (other than the payment of interest during an
Extension Period); (ii) default in payment of principal of or premium, if any,
on any Debenture of that series when the same becomes due and payable; (iii)
default for 60 days after receipt by Enterprise of a "Notice of Default" in the
performance of or failure to comply with any other covenant or agreement for
such series of Debentures or in the Indenture or any supplemental indenture
under which such series of Debentures may have been issued or (iv) certain
events of bankruptcy, insolvency or reorganization of Enterprise. In case a
Debenture Event of Default has occurred and is continuing, other than one
relating to bankruptcy, insolvency or reorganization of Enterprise, in which
case the principal of, premium, if any, and any interest on, all of the
Debentures of the applicable series shall become immediately due and payable,
the Debenture Trustee or the holders of at least 25% in aggregate principal
amount of the Debentures of that series may declare the principal, together with
interest accrued thereon, of all the Debentures of that series to be due and
payable; provided, however, that if a Debenture Event of Default has occurred
and is continuing with respect to such Debentures and the Debenture Trustee or
the holders of at least 25% in aggregate principal amount of such series of
Debentures fail to declare the principal of such series of Debentures to be
immediately due and payable, then, if such Debentures are held by an Issuer, the
holders of at least 25% in aggregate liquidation amount of the corresponding
Preferred Securities shall have such right by written notice to Enterprise and
the Debenture Trustee. The holders of at least a majority in aggregate principal
amount of such series of Debentures, by notice to the Debenture Trustee, may
rescind an acceleration, provided that if the principal of such Debentures has
been declared due and payable by the holders of the corresponding Preferred
Securities, no rescission of such acceleration will be effective unless
consented to by the holders of at least a majority in aggregate liquidation
amount of the corresponding Preferred Securities.
Enterprise will be required to furnish to the Debenture Trustee annually a
statement as to the compliance by Enterprise with all conditions and covenants
under the Indenture and the Debentures and as to any Debenture Event of Default.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Enterprise may not consolidate with or merge with or into any other person
or sell, convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any person, unless (i) the successor person
shall be organized and existing under the laws of the United States or any state
thereof or the District of Columbia and shall expressly assume by a supplemental
indenture all of the obligations of Enterprise under the Debentures and the
Indenture; (ii) immediately after giving effect to such transaction, no
Debenture Event of Default, and no event which after notice or lapse of time or
both would become a Debenture Event of Default, has occurred and is continuing;
and (iii) certain other conditions prescribed in the Indenture are met.
DEFEASANCE AND DISCHARGE
Under the terms of the Indenture, Enterprise will be discharged from any
and all obligations in respect of the Debentures of any series if Enterprise
deposits with the Debenture Trustee, in trust, (i) cash and/or (ii) United
States Government Obligations (as defined in the Indenture), which through the
payment of interest thereon and principal thereof in accordance with their terms
will provide cash in an amount sufficient to pay all the principal of, premium,
if any, and interest on, the Debentures of such series on the dates such
payments are due in accordance with the terms of such Debentures.
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INFORMATION CONCERNING THE DEBENTURE TRUSTEE
Subject to the provisions of the Indenture relating to its duties, the
Debenture Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request, order or direction of the holders of
any series of Debentures or the holders of the corresponding Preferred
Securities, unless such holders shall have offered to the Debenture Trustee
reasonable security and indemnity. Subject to such provision for
indemnification, the holders of at least a majority in aggregate principal
amount of any series of Debentures affected or the holders of at least a
majority in aggregate liquidation amount of the corresponding Preferred
Securities (with each such series voting as a class), as applicable, will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee with respect to such series of
Debentures or exercising any trust or power conferred on the Debenture Trustee.
The Indenture will contain limitations on the right of the Debenture
Trustee, as a creditor of Enterprise, to obtain payment of claims in certain
cases, or to realize on certain property received in respect of any such claim
as security or otherwise. In addition, the Debenture Trustee may be deemed to
have a conflicting interest and may be required to resign as Debenture Trustee
if at the time of a Debenture Event of Default (i) it is a creditor of
Enterprise or (ii) there is a default under the indenture(s) referred to below.
First Union National Bank is the Trustee under PSE&G's Indenture dated
August 1, 1924, with respect to PSE&G's First and Refunding Mortgage Bonds and
on various indentures relating to PSE&G. Enterprise and its subsidiaries
maintain other normal banking relationships with First Union National Bank.
GOVERNING LAW
The Indenture will be governed by and construed in accordance with the laws
of the State of New Jersey.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE DEBENTURES AND THE GUARANTEE
Payments of Distributions and redemption and liquidation payments due on a
series of Preferred Securities (to the extent the Issuer thereof has funds
available for such payments) will be guaranteed by Enterprise as and to the
extent set forth under "Description of the Guarantee." No single document
executed by Enterprise in connection with the issuance of a series of Preferred
Securities will provide for Enterprise's full, irrevocable and unconditional
guarantee of the Preferred Securities. It is only the combined operation of
Enterprise's obligations under the applicable Guarantee, the applicable Trust
Agreement, the corresponding series of Debentures and the Indenture that has the
effect of providing a full, irrevocable and unconditional guarantee of an
Issuer's obligations under its Preferred Securities.
A holder of any corresponding Preferred Security may institute a legal
proceeding directly against Enterprise to enforce its rights under such
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the related Issuer or any other person or entity.
As long as Enterprise makes payments of interest and other payments when
due on a series of Debentures, such payments will be sufficient to cover the
payment of Distributions and redemption and Liquidation Distributions due on the
corresponding Preferred Securities, primarily because (i) the aggregate
principal amount of such series of Debentures will be equal to the sum of the
aggregate liquidation amount of the corresponding Preferred Securities and
Common Securities, (ii) the interest rate and interest and other payment dates
on such series of Debentures will match the Distribution rate and Distribution
and other payment dates for the corresponding Preferred Securities, (iii) the
applicable Trust Agreement provides that Enterprise shall pay for all and any
costs, expenses and liabilities of the Issuer of such Preferred Securities
except such Issuer's obligations under such Preferred Securities, and (iv) the
applicable Trust Agreements provide that no Issuer will engage in any activity
that is not consistent with the limited purposes of such Issuer. If and to the
extent that Enterprise does not make payments on any series of Debentures, such
Issuer will not have funds available to make payments of Distributions or other
amounts due on the corresponding Preferred Securities.
A principal difference between the rights of a holder of a Preferred
Security (which represents an undivided beneficial interest in the assets of the
Issuer thereof) and a holder of a Debenture is that a holder of a Debenture will
accrue, and (subject to the permissible extension of the interest payment
period) is entitled to receive, interest on the principal amount of Debentures
held, while a holder of Preferred Securities is entitled to receive
Distributions only if and to the extent such Issuer has funds available for the
payment of such Distributions.
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Upon any voluntary or involuntary dissolution or liquidation of any Issuer
not involving a distribution of any series of Debentures, after satisfaction of
liabilities to creditors of such Issuer, the holders of the corresponding
Preferred Securities will be entitled to receive, out of assets held by such
Issuer, the Liquidation Distribution in cash. See "Description of the Preferred
Securities -- Liquidation Distribution Upon Dissolution." Upon any voluntary
liquidation or bankruptcy of Enterprise, each Issuer, as holder of the
Debentures, would be a creditor of Enterprise, subordinated in right of payment
to all Senior Indebtedness, but entitled to receive payment in full of
principal, premium, if any, and interest, before any stockholders of Enterprise
receive payments or distributions. Since Enterprise will be the guarantor under
each Guarantee and has agreed to pay for all costs, expenses and liabilities of
each Issuer (other than an Issuer's obligations to the holders of its Preferred
Securities), the positions of a holder of such Preferred Securities and a holder
of such Debentures relative to other creditors and to stockholders of Enterprise
in the event of liquidation or bankruptcy of Enterprise would be substantially
the same.
A default or event of default under any Senior Indebtedness would not
constitute a Debenture Event of Default. However, in the event of payment
defaults under, or acceleration of, Senior Indebtedness, the subordination
provisions of the Debentures provide that no payments may be made in respect of
the Debentures until such Senior Indebtedness has been paid in full or any
payment default thereunder has been cured or waived. Failure to make required
payments on any series of Debentures would constitute a Debenture Event of
Default.
PROPOSED TAX LAW CHANGES
From time to time, the Clinton Administration has proposed certain tax law
changes that would, among other things, generally deny interest deductions to a
corporate issuer if the debt instrument has a term exceeding 20 years and is not
reflected as indebtedness on such issuer's consolidated balance sheet. The term
of each series of Debentures may vary and may exceed 20 years. Enterprise cannot
predict what effect, if any, a proposal of the sort discussed above will have on
any series of Debentures; however, if any such proposal were to become effective
retroactively, Enterprise would be precluded from deducting interest paid on
such Debentures which might, depending on the specific terms of such Debentures
and the corresponding series of Preferred Securities, give rise to the right of
Enterprise to redeem such Debentures and thereby cause a mandatory redemption of
the corresponding series of Preferred Securities. Federal income tax information
and consequences and redemption provisions, if any, relating to each series of
Debentures and corresponding series of Preferred Securities will be discussed as
applicable in the accompanying Prospectus Supplement.
PLAN OF DISTRIBUTION
The Issuers may offer or sell Preferred Securities offered hereby to one or
more underwriters for public offering and sale by them. The Issuers may sell
Preferred Securities as soon as practicable after effectiveness of the
Registration Statement. Any such underwriter involved in the offer and sale of
the Preferred Securities will be named in an accompanying Prospectus Supplement.
Underwriters may offer and sell the Preferred Securities at a fixed price
or prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices relating to such prevailing market
prices or at negotiated prices. In connection with the sale of Preferred
Securities, underwriters may be deemed to have received compensation from
Enterprise in the form of underwriting discounts or commissions and may also
receive commissions. Underwriters may sell Preferred Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from such underwriters.
Any underwriting compensation paid by Enterprise on behalf of the Issuers
to underwriters in connection with the offering of Preferred Securities, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in an accompanying Prospectus Supplement.
Underwriters and dealers participating in the distribution of the Preferred
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Preferred
Securities may be deemed to be underwriting discounts and commissions, under the
Securities Act of 1933, as amended (the "Securities Act"). Underwriters and
dealers may be entitled, under agreement with Enterprise and the Issuers, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act, and to reimbursement by
Enterprise for certain expenses.
Underwriters and dealers may engage in transactions with, or perform
services for, Enterprise and/or any of its affiliates in the ordinary course of
business.
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Each series of Preferred Securities will be a new issue of securities and
will have no established trading market. Any underwriters to whom Preferred
Securities are sold by the Issuers for public offering and sale may make a
market in such Preferred Securities but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. The
Preferred Securities may or may not be listed on a national securities exchange.
No assurance can be given as to the liquidity of or the existence of trading
markets for any Preferred Securities.
LEGAL MATTERS
Certain legal matters will be passed upon for Enterprise by James T. Foran,
Esquire, Associate General Counsel of Enterprise or R. Edwin Selover, Esquire,
Vice President and General Counsel of Enterprise and by Ballard Spahr Andrews &
Ingersoll, Philadelphia, Pennsylvania, special tax counsel to Enterprise and the
Issuers, and by Richards, Layton & Finger, P.A., special Delaware counsel to
Enterprise and the Issuers, and for the underwriters by Brown & Wood LLP, New
York, New York, who may rely on the opinion of Mr. Selover or Mr. Foran as to
matters of New Jersey law. R. Edwin Selover, Esquire or James T. Foran, Esquire
and Brown & Wood LLP may rely on the opinion of Ballard Spahr Andrews &
Ingersoll as to matters of Pennsylvania law and on the opinion of Richards,
Layton & Finger, P.A. as to matters of Delaware law. Messrs. Selover and Foran
are also employees of PSE&G.
EXPERTS
The consolidated financial statements and the related financial statement
schedules of Enterprise, incorporated in this Prospectus by reference from
Enterprise's Annual Report on Form 10-K for the year ended December 31, 1997,
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimates, except the
SEC registration fee.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee............................................................................................ $ 147,500
Printing and engraving.......................................................................................... 150,000
Legal fees and expenses......................................................................................... 297,000
Fees of accountants............................................................................................. 45,000
Fees of trustees................................................................................................ 60,000
Blue sky fees and expenses...................................................................................... 2,500
NYSE Listing Fee................................................................................................ 100,300
Rating agency fees.............................................................................................. 262,500
Miscellaneous................................................................................................... 35,200
----------
Total...................................................................................................... $1,100,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 14A:3-5 of the New Jersey Business Corporation Act,
Enterprise
(1) has power to indemnify each director and officer of Enterprise (as
well as its employees and agents) against expenses and liabilities in
connection with any proceeding involving him by reason of his being or
having been such director or officer, other than a proceeding by or in the
right of Enterprise, if (a) such director or officer acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of Enterprise, and (b) with respect to any criminal proceeding,
such director or officer had no reasonable cause to believe his conduct was
unlawful;
(2) has power to indemnify each director and officer of Enterprise
against expenses in connection with any proceeding by or in the right of
Enterprise to procure a judgment in its favor which involves such director
or officer by reason of his being or having been such director or officer,
if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of Enterprise; however, in such
proceeding no indemnification may be provided in respect to any claim,
issue or matter as to which such director or officer shall have been
adjudged to be liable to Enterprise, unless and only to the extent that the
court determines that the director or officer is fairly reasonably entitled
to indemnity for such expenses as the court shall deem proper;
(3) must indemnify each director and officer against expenses to the
extent that he has been successful on the merits or otherwise in any
proceeding referred to in (1) and (2) above or in defense of any claim,
issue or matter therein; and
(4) has power to purchase and maintain insurance on behalf of a
director or officer against any expenses incurred in any proceeding and any
liabilities asserted against him by reason of his being or having been a
director or officer, whether or not Enterprise would have the power to
indemnify him against such expenses and liabilities under the statute.
As used in the statute, "expenses" means reasonable costs, disbursements
and counsel fees, "liabilities" means amounts paid or incurred in satisfaction
of settlements, judgments, fines and penalties, and "proceeding" means any
pending, threatened or completed civil, criminal, administrative or arbitrative
action, suit or proceeding, and any appeal therein and any inquiry or
investigation which could lead to such action, suit or proceeding.
Indemnification may be awarded by a court under (1) or (2) as well as under
(3) above, notwithstanding a prior determination by Enterprise that the director
or officer has not met the applicable standard of conduct.
Indemnification under the statute does not exclude any other rights to
which a director or officer may be entitled under a certificate of
incorporation, by-law, or otherwise.
Article 8, Section 1 of Enterprise's Certificate of Amendment of
Certificate of Incorporation provides as follows:
1. Indemnification:
The corporation shall indemnify to the full extent from time to time
permitted by law any person made, or threatened to be made, a party to any
pending, threatened or completed civil, criminal, administrative or
arbitrative
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action, suit, or proceeding and any appeal therein (and any inquiry or
investigation which could lead to such action, suit or proceeding) by
reason of the fact that he is or was a director, officer or employee of the
corporation or serves or served any other enterprise as a director, officer
or employee at the request of the corporation. Such right of
indemnification shall inure to the benefit of the legal representative of
any such person.
Article 8, Section 2 of Enterprise's Certificate of Amendment of
Certificate of Incorporation provides as follows:
2. Limitation of Liability:
To the full extent from time to time permitted by law, directors and
officers of the corporation shall not be personally liable to the
corporation or its shareholders for damages for breach of any duty owed to
the corporation or its shareholders. No amendment or repeal of this
provision shall adversely affect any right or protection of a director or
officer of the corporation existing at the time of such amendment or
repeal.
Each form of Underwriting Agreement between Enterprise and the Underwriters
contains a provision under which each Underwriter agrees to indemnify the
directors of Enterprise and each of its officers who signed the registration
statement against certain liabilities which might arise under the Securities Act
of 1933 (the "1933 Act") from information furnished to Enterprise in writing by
or on behalf of such Underwriter.
The directors and officers of Enterprise are insured under policies of
insurance, within the limits and subject to the limitations of the policies,
against claims made against them for acts in the discharge of their duties, and
Enterprise is insured to the extent that it is required or permitted by law to
indemnify the directors and officers for such loss. The premiums for such
insurance are paid by Enterprise.
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
- -------
<S> <C>
1-1 Form of Underwriting Agreement for Debt Securities.
1-2 Form of Underwriting Agreement for Trust Preferred Securities.*
3-1 Certificate of Trust for Enterprise Capital Trust II (Exhibit 3-2).*
3-2 Certificate of Trust for Enterprise Capital Trust III (Exhibit 3-3).*
3-3 Trust Agreement for Enterpise Capital Trust II (Exhibit 3-5).*
3-4 Trust Agreement for Enterpise Capital Trust III (Exhibit 3-6).*
3-5 Form of Amended and Restated Trust Agreement for Enterprise Capital II (Exhibit 3-8).*
3-6 Form of Amended and Restated Trust Agreement for Enterprise Capital III (Exhibit 3-9).*
4-1 Form of Preferred Security Certificate for Enterprise Capital Trust II (included in Exhibit 3-5).*
4-2 Form of Preferred Security Certificate for Enterprise Capital Trust III (included in Exhibit 3-6).*
4-3 Form of Deferrable Interest Subordinated Debenture (included in Exhibit 4-5).*
4-4 Indenture between Public Service Enterprise Group Incorporated and First Union National Bank, as Trustee,
dated January 1, 1998 providing for Deferrable Interest Subordinated Debentures in Series (Exhibit 4f).**
4-5 Form of Deferrable Interest Subordinated Debenture Supplemental Indenture (Exhibit 4-6).*
4-6 Form of Senior Indenture for Public Service Enterprise Group Incorporated.
4-7 Form of Subordinated Indenture for Public Service Enterprise Group Incorporated.
4-8 Form of Senior Debt Security.***
4-9 Form of Subordinated Debt Security.***
4-10 Form of Guarantee Agreement for Enterprise Capital Trust II (Exhibit 4-8).*
4-11 Form of Guarantee Agreement for Enterprise Capital Trust III (Exhibit 4-9).*
5-1 Opinion of James T. Foran, Esquire relating to the validity of the
Debt Securities, the Debentures and the Guarantees, including consent.
5-2 Opinion of Richards, Layton & Finger, P.A., special Delaware counsel,
relating to the validity of the Preferred Securities of Enterprise
Capital Trust II, including consent.
5-3 Opinion of Richards, Layton & Finger, P.A., special Delaware counsel,
relating to the validity of the Preferred Securities of Enterprise
Capital Trust III, including consent.
8 Opinion of Ballard Spahr Andrews & Ingersoll, special tax counsel, as to tax
matters, including consent.
12 Computations of Ratios of Earnings to Fixed Charges (incorporated by reference
to Exhibit 12 to Enterprise's Annual Report on Form 10-K for the year ended
December 31, 1997).*
23-1 Consent of Independent Auditors.
23-2 Consent of James T. Foran, Esquire (included in Exhibit 5-1).
23-3 Consent of Richards, Layton & Finger, P.A. (included in Exhibits 5-2 and 5-3).
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
- -------
<S> <C>
23-4 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 8).
24 Power of Attorney.
25-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Senior
Indenture for Public Service Enterprise Group Incorporated.
25-2 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Subordinated
Indenture for Public Service Enterprise Group Incorporated.
25-3 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Deferrable
Interest Subordinated Debenture Indenture and Deferrable Interest
Subordinated Debenture Supplemental Indenture.
25-4 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Property Trustee under the Amended and
Restated Trust Agreement for Enterprise Capital Trust II.
25-5 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Property Trustee under the Amended and
Restated Trust Agreement for Enterprise Capital Trust III.
25-6 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Guarantee Trustee under the Guarantee
Agreement for Enterprise Capital Trust II.
25-7 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Guarantee Trustee under the Guarantee
Agreement for Enterprise Capital Trust III.
</TABLE>
- ---------------
* Previously filed as the indicated exhibit to Registration Statement on Form
S-3 (No. 333-43241) and incorporated herein by reference.
** Previously filed as the indicated exhibit to Enterprise's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1998 and incorporated herein by
reference.
*** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1) (i) and (a)(1) (ii) do not apply
if the registration statement is on form S-3 or form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered thereby, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions referred to in Item 15 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
II-3
<PAGE>
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The Registrants hereby undertake to provide to the underwriter at the
closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
(e) The Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrants, Enterprise Capital Trust II and Enterprise Capital Trust III each
certifies that it has reasonable grounds to believe it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newark, State of New Jersey, on this fourteenth day
of May, 1998.
ENTERPRISE CAPITAL TRUST II
By: Public Service Enterprise Group
Incorporated, as Sponsor
By: /s/ E. JAMES FERLAND
--------------------------------
ENTERPRISE CAPITAL TRUST III
By: Public Service Enterprise Group
Incorporated, as Sponsor
By: /s/ E. JAMES FERLAND
--------------------------------
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Public Service Enterprise Group Incorporated, certifies that it has reasonable
grounds to believe it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Newark, State of New
Jersey, on this fourteenth day of May, 1998.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
By: /s/ E. JAMES FERLAND
--------------------------------
E. JAMES FERLAND
CHAIRMAN OF THE BOARD AND PRESIDENT
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------------------------------ ------------------------------------------- ------------------
<S> <C> <C>
/s/E. JAMES FERLAND Principal Executive Officer and Director May 14, 1998
- -------------------------------------------------------
E. JAMES FERLAND
/s/ROBERT C. MURRAY Principal Financial Officer May 14, 1998
- -------------------------------------------------------
ROBERT C. MURRAY
/s/PATRICIA A. RADO Principal Accounting Officer May 14, 1998
- -------------------------------------------------------
PATRICIA A. RADO
</TABLE>
This Registration Statement has also been signed by Robert C. Murray,
Attorney-in-Fact, on behalf of the following Directors on May 14, 1998.
Lawrence R. Codey Irwin Lerner
Ernest H. Drew Marilyn M. Pfalz
T.J. Dermot Dunphy Forrest J. Remick
Raymond V. Gilmartin Richard J. Swift
Conrad K. Harper Josh S. Weston
By: /s/ROBERT C. MURRAY
-----------------------------
ROBERT C. MURRAY
ATTORNEY-IN-FACT
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
- -------
<S> <C>
1-1 Form of Underwriting Agreement for Debt Securities.
1-2 Form of Underwriting Agreement for Trust Preferred Securities.*
3-1 Certificate of Trust for Enterprise Capital Trust II (Exhibit 3-2).*
3-2 Certificate of Trust for Enterprise Capital Trust III (Exhibit 3-3).*
3-3 Trust Agreement for Enterpise Capital Trust II (Exhibit 3-5).*
3-4 Trust Agreement for Enterpise Capital Trust III (Exhibit 3-6).*
3-5 Form of Amended and Restated Trust Agreement for Enterprise Capital II (Exhibit 3-8).*
3-6 Form of Amended and Restated Trust Agreement for Enterprise Capital III (Exhibit 3-9).*
4-1 Form of Preferred Security Certificate for Enterprise Capital Trust II (included in Exhibit 3-5).*
4-2 Form of Preferred Security Certificate for Enterprise Capital Trust III (included in Exhibit 3-6).*
4-3 Form of Deferrable Interest Subordinated Debenture (included in Exhibit 4-5).*
4-4 Indenture between Public Service Enterprise Group Incorporated and First Union National Bank, as Trustee,
dated January 1, 1998 providing for Deferrable Interest Subordinated Debentures in Series (Exhibit 4f).**
4-5 Form of Deferrable Interest Subordinated Debenture Supplemental Indenture (Exhibit 4-6).*
4-6 Form of Senior Indenture for Public Service Enterprise Group Incorporated.
4-7 Form of Subordinated Indenture for Public Service Enterprise Group Incorporated.
4-8 Form of Senior Debt Security.***
4-9 Form of Subordinated Debt Security.***
4-10 Form of Guarantee Agreement for Enterprise Capital Trust II (Exhibit 4-8).*
4-11 Form of Guarantee Agreement for Enterprise Capital Trust III (Exhibit 4-9).*
5-1 Opinion of James T. Foran, Esquire relating to the validity of the
Debt Securities, the Debentures and the Guarantees, including consent.
5-2 Opinion of Richards, Layton & Finger, P.A., special Delaware counsel,
relating to the validity of the Preferred Securities of Enterprise
Capital Trust II, including consent.
5-3 Opinion of Richards, Layton & Finger, P.A., special Delaware counsel,
relating to the validity of the Preferred Securities of Enterprise
Capital Trust III, including consent.
8 Opinion of Ballard Spahr Andrews & Ingersoll, special tax counsel, as to tax
matters, including consent.
12 Computations of Ratios of Earnings to Fixed Charges (incorporated by
reference to Exhibit 12 to Enterprise's Annual Report on Form 10-K
for the year ended December 31, 1997).*
23-1 Consent of Independent Auditors.
23-2 Consent of James T. Foran, Esquire (included in Exhibit 5-1).
23-3 Consent of Richards, Layton & Finger, P.A. (included in Exhibits 5-2 and 5-3).
23-4 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 8).
24 Power of Attorney.
25-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Senior
Indenture for Public Service Enterprise Group Incorporated.
25-2 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Subordinated
Indenture for Public Service Enterprise Group Incorporated.
25-3 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Deferrable
Interest Subordinated Debenture Indenture and Deferrable Interest
Subordinated Debenture Supplemental Indenture.
25-4 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Property Trustee under the Amended and
Restated Trust Agreement for Enterprise Capital Trust II.
25-5 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Property Trustee under the Amended and
Restated Trust Agreement for Enterprise Capital Trust III.
25-6 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Guarantee Trustee under the Guarantee
Agreement for Enterprise Capital Trust II.
25-7 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Guarantee Trustee under the Guarantee
Agreement for Enterprise Capital Trust III.
</TABLE>
- ---------------
* Previously filed as the indicated exhibit to Registration Statement on Form
S-3 (No. 333-43241) and incorporated herein by reference.
** Previously filed as the indicated exhibit to Enterprise's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1998 and incorporated herein by
reference.
*** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
Table of Contents
UNDERWRITING AGREEMENT ......................................................
SECTION 1. Representations And Warranties.............................
(a) Representations and Warranties by the Company...................
(1) Compliance with Registration
Requirements...................................
(2) Incorporated Documents...............................
(3) Independent Accountants..............................
(4) Financial Statements.................................
(5) No Material Adverse Change in Business...............
(6) Good Standing of the Company.........................
(7) Good Standing of Subsidiaries........................
(8) Capitalization.......................................
(9) Authorization of this Underwriting Agreement
and Terms Agreement............................
(10) Authorization of Senior Debt Securities and/or
Subordinated Debt Securities...................
(11) Authorization of the Indentures......................
(12) Descriptions of the Underwritten
Securities and the Indentures..................
(13) Absence of Defaults and Conflicts....................
(14) Absence of Labor Dispute.............................
(15) Absence of Proceedings...............................
(16) Accuracy of Exhibits.................................
(17) Absence of Further Requirements......................
(18) Possession of Licenses and Permits...................
(19) Title to Property....................................
(20) Commodity Exchange Act...............................
(21) Investment Company Act...............................
(22) Environmental Laws...................................
(b) Officers' Certificates..........................................
SECTION 2. Sale And Delivery To Underwriters; Closing.................
(a) Underwritten Securities.........................................
(b) Option Underwritten Securities..................................
(c) Payment. .......................................................
(d) Denominations; Registration.....................................
SECTION 3. Covenants Of The Company...................................
(a) Compliance with Securities Regulations and Commission
Requests.......................................
i
<PAGE>
(b) Filing of Amendments............................................
(c) Delivery of Registration Statements.............................
(d) Delivery of Prospectuses........................................
(e) Continued Compliance with Securities Laws.......................
(f) Blue Sky Qualifications.........................................
(g) Earnings Statement..............................................
(h) Use of Proceeds.................................................
(i) Listing. .......................................................
(j) Restriction on Sale of Securities...............................
(k) Reporting Requirements..........................................
SECTION 4. Payment Of Expenses........................................
(a) Expenses .......................................................
(b) Termination of Agreement........................................
SECTION 5. Conditions Of Underwriters' Obligations....................
(a) Effectiveness of Registration Statement.........................
(b) Opinion of Counsel for Company..................................
(c) Opinion of Counsel for Underwriters.............................
(d) Officers' Certificate...........................................
(e) Accountant's Comfort Letter.....................................
(f) Bring-down Comfort Letter.......................................
(g) Ratings. .......................................................
(h) Approval of Listing.............................................
(i) No Objection....................................................
(j) Lock-up Agreements..............................................
(k) Over-Allotment Option...........................................
(l) Additional Documents............................................
(m) Termination of Terms Agreement..................................
SECTION 6. Indemnification............................................
(a) Indemnification of Underwriters.................................
(b) Untrue Statements...............................................
(c) Indemnification of Company, Directors and Officers..............
(d) Survival........................................................
(e) Actions against Parties; Notification...........................
SECTION 7. Contribution...............................................
SECTION 8. Representations, Warranties And Agreements
To Survive Delivery....................................
SECTION 9. Termination................................................
(a) Underwriting Agreement..........................................
(b) Terms Agreement.................................................
(c) Liabilities.....................................................
ii
<PAGE>
SECTION 10. Default By One Or More Of The Underwriters....................
SECTION 11. Notices.......................................................
SECTION 12. Parties.......................................................
SECTION 13. Governing Law And Time........................................
SECTION 14. Effect Of Headings............................................
iii
<PAGE>
Draft of March 31, 1998
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(a New Jersey corporation)
Debt Securities
UNDERWRITING AGREEMENT
[ ], 1998
[Underwriter]
Ladies and Gentlemen:
Public Service Enterprise Group Incorporated, a New Jersey corporation (the
"Company"), proposes to issue and sell up to [ ] aggregate initial public
offering price of its senior or subordinated debt securities (the "Debt
Securities"), from time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of [ ],
1998 (the "Senior Indenture"), between the Company and [*], as trustee (the
"Senior Trustee"), or as subordinated indebtedness (the "Subordinated Debt
Securities") under an indenture, dated as of [ ], 1998 (the "Subordinated
Indenture", and collectively with the Senior Indenture, the "Indentures", and
each, an "Indenture"), between the Company and [*], as trustee (the
"Subordinated Trustee", and collectively with the Senior Trustee, the
"Trustees", and each, a "Trustee"). Each series of Debt Securities may vary, as
applicable, as to title, aggregate principal amount, rank, interest rate or
formula and timing of payments thereof, stated maturity date, redemption and/or
repayment provisions, sinking fund requirements, conversion provisions and any
other variable terms established by or pursuant to the applicable Indenture.
As used herein, "Securities" shall mean the Senior Debt Securities and the
Subordinated Debt Securities, initially issuable by the Company.
Whenever the Company determines to make an offering of Securities through
[Underwriter]("[Underwriter]"), or through an underwriting syndicate managed by
[Underwriter], the Company will enter into an agreement (each, a "Terms
Agreement") providing for the sale of such Securities to, and the purchase and
offering thereof by, [Underwriter] and such other underwriters, if any, selected
by [Underwriter] (the "Underwriters", which term shall include [Underwriter],
whether acting as sole Underwriter or as a member of an underwriting syndicate,
as well as any Underwriter substituted pursuant to Section 10 hereof). The Terms
Agreement relating to the offering of Securities shall specify the number or
aggregate principal amount, as the case may be, of Securities to be initially
issued (the "Initial Underwritten
<PAGE>
Securities"), the name of each Underwriter participating in such offering
(subject to substitution as provided in Section 10 hereof) and the name of any
Underwriter other than [Underwriter] acting as co-manager in connection with
such offering, the number or aggregate principal amount, as the case may be, of
Initial Underwritten Securities which each such Underwriter severally agrees to
purchase, whether such offering is on a fixed or variable price basis and, if on
a fixed price basis, the initial offering price, the price at which the Initial
Underwritten Securities are to be purchased by the Underwriters, the form, time,
date and place of delivery and payment of the Initial Underwritten Securities
and any other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether the Company
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the number or aggregate
principal amount, as the case may be, of Securities subject to such option (the
"Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the Company
and [Underwriter], acting for itself and, if applicable, as representative of
any other Underwriters. Each offering of Underwritten Securities through
[Underwriter] as sole Underwriter or through an underwriting syndicate managed
by [Underwriter] will be governed by this Underwriting Agreement, as
supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-[*]) for the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the Commission and each Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"), and the Company has filed
such post-effective amendments thereto as may be required prior to the execution
of the applicable Terms Agreement and each such post-effective amendment has
been declared effective by the Commission. Such registration statement (as so
amended, if applicable), including the information, if any, deemed to be a part
thereof pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company for use in connection with the offering of the Underwritten
Securities, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to the execution of the applicable Terms Agreement; provided,
2
<PAGE>
further, that if the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if the Company elects to
rely upon Rule 434 of the 1933 Act Regulations, then all references to
"Prospectus" shall also be deemed to include the final or preliminary prospectus
and the applicable term sheet or abbreviated term sheet (the "Term Sheet"), as
the case may be, in the form first furnished to the Underwriters by the Company
in reliance upon Rule 434 of the 1933 Act Regulations, and all references in
this Underwriting Agreement to the date of the Prospectus shall mean the date of
the Term Sheet. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and any
prospectus that omitted, as applicable, the Rule 430A Information, the Rule 434
Information or other information to be included upon pricing in a form of
prospectus filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations and was used after such effectiveness and prior to the execution and
delivery of the applicable Terms Agreement. For purposes of this Underwriting
Agreement, all references to the Registration Statement, Prospectus, Term Sheet
or preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to [Underwriter], as of the date hereof, and to each Underwriter
named in the applicable Terms Agreement, as of the date thereof, as of the
Closing Time (as defined below) and, if applicable, as of each Date of Delivery
(as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness
of the Registration Statement (or such Rule 462(b) Registration Statement)
has been issued under the 1933 Act and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. In addition,
each Indenture has been duly qualified under the 1939 Act.
3
<PAGE>
At the respective times the Registration Statement (including any Rule
462(b) Registration Statement) and any post-effective amendments thereto
(including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) became
effective and at each Representation Date, the Registration Statement
(including any Rule 462(b) Registration Statement) and any amendments
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus, at the Closing Time and at each
Date of Delivery, if any, neither the Prospectus nor any amendments and
supplements thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If the Company elects to rely
upon Rule 434 of the 1933 Act Regulations, the Company will comply with the
requirements of Rule 434. Notwithstanding the foregoing, the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any Underwriter through
[Underwriter] expressly for use in the Registration Statement or the
Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with the offering of Underwritten Securities will, at the
time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the 1933 Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
the [Underwriter] expressly for use therein;
The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the 1933 Act and the Trust
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Indenture Act of 1939, as amended (the "TIA"), and the rules and
regulations of the Commission thereunder and do not and will not, (i) as of
the applicable effective date as to the Registration Statement and any
amendment thereto and (ii) as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the [Underwriter] expressly for use therein.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus,
when they became effective or at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read together
with the other information in the Prospectus, at the date of the
Prospectus, at the Closing Time and at each Date of Delivery, if any, did
not and will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter (or
through any representative(s)) expressly for use therein.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of the Company
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of the Company and its consolidated subsidiaries, or
such other entity, as the case may be, at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
and its consolidated subsidiaries, or such other entity, as the case may
be, for the periods specified. Such financial statements have been prepared
in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement and
the Prospectus present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of
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the audited financial statements included in the Registration Statement and
the Prospectus.
(5) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the business, properties or financial condition
of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those arising in the ordinary course
of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) except for regular
dividends on the Company's common stock or preferred stock, in amounts per
share that are consistent with past practice or the applicable charter
document or supplement thereto, respectively, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(6) Good Standing of the Company. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of New Jersey, with due corporate authority to own and operate
its properties and to conduct its business as described in the Prospectus.
(7) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X
promulgated under the 1933 Act) and Public Service Electric and Gas Company
and Enterprise Diversified Holdings Incorporated (each, a "Subsidiary" and,
collectively, the "Subsidiaries"), if any, has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or be in good standing would not result in a Material Adverse
Effect. Except as otherwise stated in the Registration Statement and the
Prospectus, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and is validly issued, fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity. None of the outstanding shares of
capital stock of any Subsidiary was issued in violation of preemptive or
other similar rights of any securityholder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of
the Company is as set forth in the column entitled "Actual" under such
section (except for subsequent
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issuances thereof, if any, contemplated under this Underwriting Agreement,
pursuant to reservations, agreements or employee benefit plans referred to
in the Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). Such shares of capital stock have
been duly authorized and validly issued by the Company and are fully paid
and non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or other similar rights of any securityholder of
the Company.
(9) Authorization of this Underwriting Agreement and Terms Agreement.
This Underwriting Agreement has been, and the applicable Terms Agreement as
of the date thereof will have been, duly authorized, executed and delivered
by the Company.
(10) Authorization of Senior Debt Securities and/or Subordinated Debt
Securities. If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or
Subordinated Debt Securities, such Underwritten Securities have been, or as
of the date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such
Terms Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Underwritten Securities will be in the form
contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(11) Authorization of the Indentures. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Senior Debt
Securities and/or Subordinated Debt Securities or if Preferred Stock is, or
Depositary Shares represented by Preferred Stock are, convertible into Debt
Securities, each applicable Indenture has been, or prior to the issuance of
the Debt Securities thereunder will have been, duly authorized, executed
and delivered by the Company and, upon such authorization, execution and
delivery, will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization,
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<PAGE>
moratorium or other similar laws affecting the enforcement of creditors'
rights generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(12) Descriptions of the Underwritten Securities and the Indentures.
The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture, as of each Representation Date,
when issued and delivered in accordance with the terms of the related
Underwritten Securities, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be
substantially in the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the Company nor any of
its subsidiaries is in violation of its Amended and Restated Certificate of
Incorporation or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the assets, properties or operations of the Company or any of
its subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect. The execution, delivery and performance of this Underwriting
Agreement, the applicable Terms Agreement and each applicable Indenture and
any other agreement or instrument entered into or issued or to be entered
into or issued by the Company in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein and
in the Registration Statement and the Prospectus (including the issuance
and sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption "Use
of Proceeds") and compliance by the Company with its obligations hereunder
and thereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company or any of its subsidiaries pursuant
to, any Agreements and Instruments, nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
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<PAGE>
(14) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(15) [Absence of Proceedings. Other than as set forth in or
contemplated by the Prospectus, there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
consolidated assets, properties or operations thereof or the consummation
of the transactions contemplated under the Prospectus, this Underwriting
Agreement, the applicable Terms Agreement or any applicable Indenture, or
the performance by the Company of its obligations hereunder and thereunder.
The aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective assets, properties or operations is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.]
(16) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(17) [Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company of this Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, such Terms Agreement or any applicable Indenture, except the
registration of the Securities under the 1933 Act, the qualification of the
Indentures under the TIA and such consents, approvals, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the issuance and sale, as the case may be, of the
securities and except such as have been already made, obtained or rendered,
as applicable.]
(18) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations
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<PAGE>
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them. The Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect. All of the Governmental
Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in a
Material Adverse Effect. Neither the Company nor any of its subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(19) Title to Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind, except (A) as otherwise
stated in the Registration Statement and the Prospectus or (B) those which
do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company or any of its subsidiaries. All of the leases
and subleases material to the business of the Company and its subsidiaries
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any of its subsidiaries has
received any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary of
the continued possession of the leased or subleased premises under any such
lease or sublease
(20) Commodity Exchange Act. If the Underwritten Securities being sold
pursuant to the applicable Terms Agreement include Debt Securities, such
Debt Securities, upon issuance, will be excluded or exempted under, or
beyond the purview of, the Commodity Exchange Act, as amended (the
"Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the "Commodity
Exchange Act Regulations").
(21) Investment Company Act. The Company is not, and upon the issuance
and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
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<PAGE>
(22) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.]
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries and delivered to any Underwriter or to
counsel for the Underwriters in connection with the offering of the Underwritten
Securities shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby on the date of such certificate
and, unless subsequently amended or supplemented, at each Representation Date
subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters to
purchase the Underwritten Securities pursuant to the applicable Terms Agreement
shall be deemed to have been made on the basis of the representations,
warranties and agreements herein contained and shall be subject to the terms and
conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, the Company may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the number or aggregate principal amount, as the case may be, of the
Option Underwritten Securities set forth therein at a price per Option
Underwritten Security equal to the price per Initial Underwritten Security, less
an amount equal to any dividends or distributions declared by the Company and
paid or payable on the
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Initial Underwritten Securities but not on the Option Underwritten Securities.
Such option, if granted, will expire 30 days after the date of such Terms
Agreement, and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Underwritten Securities upon notice by
[Underwriter] to the Company setting forth the number or aggregate principal
amount, as the case may be, of Option Underwritten Securities as to which the
several Underwriters are then exercising the option and the time, date and place
of payment and delivery for such Option Underwritten Securities. Any such time
and date of payment and delivery (each, a "Date of Delivery") shall be
determined by [Underwriter], but shall not be later than seven full business
days after the exercise of said option, nor in any event prior to the Closing
Time, unless otherwise agreed upon by [Underwriter] and the Company. If the
option is exercised as to all or any portion of the Option Underwritten
Securities, each of the Underwriters, severally and not jointly, will purchase
that proportion of the total number or aggregate principal amount, as the case
may be, of Option Underwritten Securities then being purchased which the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in such Terms Agreement bears to the total number or aggregate principal amount,
as the case may be, of Initial Underwritten Securities, subject to such
adjustments as [Underwriter] in its discretion shall make to eliminate any sales
or purchases of a fractional number or aggregate principal amount, as the case
may be, of Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of [Underwriter's
name and address], or at such other place as shall be agreed upon by
[Underwriter] and the Company, at 9:00 A.M. (Eastern time) on the third (fourth,
if the pricing occurs after 4:30 P.M. (Eastern time) on any given day) business
day after the date of the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by
[Underwriter] and the Company (such time and date of payment and delivery being
herein called "Closing Time"). In addition, in the event that the Underwriters
have exercised their option, if any, to purchase any or all of the Option
Underwritten Securities, payment of the purchase price for, and delivery of such
Option Underwritten Securities, shall be made at the above-mentioned offices of
Brown & Wood LLP, or at such other place as shall be agreed upon by
[Underwriter] and the Company, on the relevant Date of Delivery as specified in
the notice from [Underwriter] to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
[Underwriter] for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized [Underwriter], for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. [Underwriter],
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
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(d) Denominations; Registration. The Underwritten Securities shall be in
such denominations and registered in such names as [Underwriter] may request in
writing at least one full business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be. The Underwritten Securities will be made
available for examination and packaging by [Underwriter] in The City of New York
not later than 9:00 A.M. (Eastern time) on the business day prior to the Closing
Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with
[Underwriter] and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
of the 1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and
as applicable, and will notify the Representative(s) promptly, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424 and will take such steps as it deems necessary to ascertain promptly
whether the Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it will promptly
file the Prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, promptly to use
its best efforts to obtain its withdrawal.
(b) Filing of Amendments. The Company will give [Underwriter] notice of its
intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b) of the 1933 Act Regulations), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish [Underwriter] with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which [Underwriter] or counsel for the Underwriters
shall reasonably disapprove.
(c) Delivery of Registration Statements. The Company has furnished or will
deliver to [Underwriter] and counsel for the Underwriters, in such quantities as
[Underwriter] may reasonably request, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also deliver
to [Underwriter], without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The Registration Statement
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and each amendment thereto furnished to the Underwriters will be identical to
any electronically transmitted copies thereof filed with the Commission pursuant
to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will furnish
to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement in order that the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or to amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as [Underwriter] may designate and to
maintain such qualifications in effect for a period of not less than one year
from the date of the applicable Terms Agreement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Underwritten Securities have been so
qualified, the Company will
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file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the date of such Terms Agreement.
(g) Earnings Statement. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the listing of
the Underwritten Securities, prior to the Closing Time, on any national
securities exchange or quotation system if and as specified in the applicable
Terms Agreement.
(j) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, the Company will not, without the prior written consent of
[Underwriter], directly or indirectly, issue, sell, offer or contract to sell,
grant any option for the sale of, or otherwise dispose of, the securities
specified in such Terms Agreement.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Underwriting
Agreement or the applicable Terms Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, the Indentures
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities, (iii) the
preparation, issuance and delivery of the Underwritten Securities, to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors or agents (including transfer agents and
registrars), as well as the fees and disbursements of the Trustees, any
Depositary, and their respective counsel, (v) the qualification of the
Underwritten Securities under state securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation, printing and delivery of the Blue Sky Survey,
and any amendment thereto, (vi) the printing and
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delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheet, and the Prospectus and any amendments or supplements thereto, (vii) the
fees charged by nationally recognized statistical rating organizations for the
rating of the Underwritten Securities, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities, (ix) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review, if any, by the National Association
of Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Underwritten Securities, (x) all other costs and expenses incident to the
performance of obligations hereunder which are not otherwise specifically
provided for in this Section and (xi) the fees and expenses of any Underwriter
acting in the capacity of a "qualified independent underwriter" (as defined in
Section 2(l) of Schedule E of the bylaws of the NASD), if applicable.
[(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by [Underwriter] in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.]
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company or any of its subsidiaries delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective
under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act
and no proceedings for that purpose shall have been instituted or be
pending or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of the
Underwritten Securities, the specific method of distribution and
similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable
(or any required post-effective amendment providing such information
shall have been filed and declared effective in accordance with the
requirements of Rule 430A), or, if the Company has elected to rely
upon Rule 434 of the 1933 Act Regulations, a Term Sheet including the
Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, [Underwriter] shall
have received the favorable opinion, dated as of Closing Time, of
Ballard Spahr Andrews & Ingersoll, counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such letter for each
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of the other Underwriters, to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, [Underwriter]
shall have received the favorable opinion, dated as of Closing Time,
of Brown & Wood LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, with respect to the matters set forth in (1), (2), (6),
(7) to (11), as applicable (it being understood that any opinion
required with respect to the Underwritten Securities, not being
subject to preemptive or other similar rights of the securityholders
of the Company shall be limited to such rights arising by operation of
law or under the charter or by-laws of the Company), (11), (13)
(solely as to the information in the Prospectus under "Description of
Debt Securities", or any caption purporting to describe any such
Securities), (19), (20), (23) and the penultimate paragraph of Exhibit
B hereto. In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of
the State of New York, the federal law of the United States and the
General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to [Underwriter]. Such counsel may also state
that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers
of the Company and its subsidiaries and certificates of public
officials.
(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and [Underwriter]
shall have received a certificate of the Chairman, the President or
any Vice President of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii)
the representations and warranties in Section 1(a) are true and
correct with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted, are
pending or, to the best of such officer's knowledge, are threatened by
the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, [Underwriter] shall have received from
Deloitte & Touche LLP a letter dated such date, in form and substance
satisfactory to [Underwriter], together with signed or reproduced
copies of such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus.
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(f) Bring-down Comfort Letter. At Closing Time, [Underwriter] shall have
received from Deloitte & Touche LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section 5, except
that the specified date referred to shall be a date not more than
three business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, shall
have the ratings accorded by any "nationally recognized statistical
rating organization", as defined by the Commission for purposes of
Rule 436(g)(2) of the 1933 Act Regulations, if and as specified in the
applicable Terms Agreement, and the Company shall have delivered to
[Underwriter] a letter, dated as of such date, from each such rating
organization, or other evidence satisfactory to [Underwriter],
confirming that the Underwritten Securities have such ratings. Since
the time of execution of such Terms Agreement, there shall not have
occurred a downgrading in, or withdrawal of, the rating assigned to
the Underwritten Securities or any of the Company's other securities
by any such rating organization, and no such rating organization shall
have publicly announced that it has under surveillance or review its
rating of the Underwritten Securities or any of the Company's other
securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice
of issuance, if and as specified in the applicable Terms Agreement.
(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the
NASD shall not have raised any objection with respect to the fairness
and reasonableness of the underwriting terms and arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement,
[Underwriter] shall have received, in form and substance satisfactory
to it, each lock-up agreement, if any, specified in such Terms
Agreement as being required to be delivered by the persons listed
therein.
(k) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all
or any portion of the Option Underwritten Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company or any of its
subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, [Underwriter] shall
have received:
(1) A certificate, dated such Date of Delivery, of the Chairman,
the President or any Vice President of the Company, confirming that
the certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
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(2) The favorable opinion of Ballard Spahr Andrews & Ingersoll,
counsel for the Company, [together with the favorable opinion of [*],
special [*] counsel for the Company, each] in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and otherwise
to the same effect as the opinion required by Section 5(b) hereof.
(3) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(4) A letter from Deloitte & Touche LLP, in form and substance
satisfactory to [Underwriter] and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished
to [Underwriter] pursuant to Section 5(f) hereof, except that the
"specified date" on the letter furnished pursuant to this paragraph
shall be a date not more than three business days prior to such Date
of Delivery.
(5) Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Underwritten Securities or any of the Company's other
securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or
any of the Company's other securities.
(l) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Underwritten Securities
as herein contemplated, or in order to evidence the accuracy of any of
the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company
in connection with the issuance and sale of the Underwritten
Securities as herein contemplated shall be satisfactory in form and
substance to [Underwriter] and counsel for the Underwriters.
(m) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for the
purchase of Option Underwritten Securities on a Date of Delivery after
the Closing Time, the obligations of the Underwriters to purchase the
Option Underwritten Securities on such Date of Delivery) may be
terminated by [Underwriter] by notice to the Company at any time at or
prior to the Closing Time (or such Date of Delivery, as applicable),
and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections
1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. Indemnification.
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(a) Indemnification of Underwriters. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
statement of a material fact contained in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule
434 Information deemed to be a part thereof, if applicable, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by an Underwriter through the
Representatives expressly for use in the Registration Statement, such
preliminary prospectus or the Prospectus, or any amendment or supplement
thereto;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred, reasonably
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply (i) to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through [Underwriter] expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information deemed to be a part thereof, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or (ii) to any preliminary prospectus to the extent that any
such loss, claim, damage or liability of such Underwriter results solely from
the fact that such Underwriter sold securities to a person to whom it is
established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) in any case where such delivery is required by the
1933 Act, if the Company has previously furnished to [Underwriter] on behalf of
the Underwriters, including such Underwriter, the copies thereof theretofore
requested by
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[Underwriter], and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in a
preliminary prospectus that was corrected in the Prospectus.
(b) This indemnity agreement is subject to the condition that insofar as it
relates to any untrue statement or omission, or any alleged untrue statement or
omission, made in the Prospectus but eliminated or remedied in a supplement or
amendment thereto, such indemnity agreement shall not inure to the benefit of
any Underwriter from and after the time such supplement or amendment shall have
been furnished unless the Prospectus is used as so supplemented or amended,
provided that such use shall not require delivery of documents incorporated by
reference. In no case shall the Company be liable under the indemnity agreement
set forth in Section 6(a) hereof with respect to any claim made against any
Underwriter or any such controlling person unless such party shall be notified
in writing of the nature of the claim promptly after the assertion thereof, but
failure to so notify such party shall not relieve it from any liability which it
may have otherwise than on account of said indemnity agreement. The Company
shall be entitled to participate at its own expense in the defense, or, if it so
elects, within a reasonable time after receipt of such notice, to assume the
defense of any suit brought to enforce any such claim, but if it so elects to
assume the defense shall be conducted by counsel chosen by it and approved by
the Underwriter or Underwriters or controlling person or persons, defendant or
defendants in any suit so brought, which approval shall not be unreasonably
withheld. In the event that the Company elects to assume the defense of any such
suit and retains such counsel, the Underwriter or Underwriters or controlling
person or persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel thereafter retained by them. In the event
that the parties to any such action (including impleaded parties) include the
Company and one or more Underwriters and any such Underwriter shall have been
advised by counsel chosen by it and satisfactory to the Company, as the case may
be, that there may be one or more legal defenses available to it which are
different from or additional to those available to the Company, the Company
shall not have the right to assume the defense of such action on behalf of such
Underwriter and the Company, will reimburse such Underwriter and any person
controlling such Underwriter as aforesaid for the reasonable fees and expenses
of any counsel retained by them, it being understood that the Company shall not,
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for all such Underwriters and controlling persons,
which firm shall be designated by the [Underwriter] in writing. The Company
agrees to notify the [Underwriter] promptly after the assertion of any claim
against them, any of their directors, any of their officers who signed the
Registration Statement, or any person who controls them within the meaning of
Section 15 of the Act, in connection with the issuance and sale, as the case may
be, of the Securities.
(c) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of
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this Section, as incurred, but only with respect to statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through [Underwriter] expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto). In case any action
shall be brought against the Company or any person so indemnified based on the
Registration Statement, such preliminary prospectus or the Prospectus, or any
amendment or supplement thereto and in respect of which indemnity may be sought
against any Underwriter, such Underwriter shall have the rights and duties given
to the Company, and the Company and each person so indemnified shall have the
rights and duties given to the Underwriters by the provisions of Section 6(a)
and (b) hereof.
(d) The indemnity agreements contained in Section 6 shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of the Company, or any Underwriter or any controlling person, and shall
survive the delivery of the Securities to the Underwriters.
(e) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by [Underwriter], and, in
the case of parties indemnified pursuant to Section 6(c) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
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SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreements provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreements
incurred by the Company and one or more of the Underwriters, in such proportions
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus relating to the Securities bears to the initial public offering price
appearing thereon and the Company, is responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act shall have the same rights
to contribution as the Company.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
the Company or any of its subsidiaries submitted pursuant hereto or thereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of and payment for
the Underwritten Securities.
If this Agreement shall be terminated pursuant to Section 7 hereof, the
Company shall not be under any liability to any Underwriter except as provided
in Section 6 and Section 8 hereof; but if, for any other reason the transactions
contemplated herein are not consummated, the Company will reimburse the
Underwriter for all out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred by the Underwriter in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to the Underwriter in respect of the Securities not
so delivered except as provided in Section 4 and Section 6 hereof. Except as
provided above, the Company shall not be liable to the Underwriters for damages
on account of any other consequential damages or loss of anticipated profits.
In all dealings hereunder, the Representatives shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by the Representatives jointly or by [Underwriter] on behalf of
the Representatives.
SECTION 9. Termination.
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(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by [Underwriter] upon the giving of 30 days' prior written notice of
such termination to the other party hereto.
(b) Terms Agreement. [Underwriter] may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (a) (i) a general banking moratorium shall
have been declared by either Federal or New York authorities, or (ii) there
shall have occurred any new outbreak or unforeseen escalation of hostilities or
other national or international calamity or crisis, or (iii) there shall have
occurred a suspension or material limitation in (x) trading in securities
generally on the New York Stock Exchange or (y) trading in any of the Company's
securities on the New York Stock Exchange, and the effect of the occurrence of
any event referred to in clause (i), (ii) or (iii) above is, in the reasonable
judgment of the [Underwriter], so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering of the
Securities or the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus, or (b) the rating accorded the Securities or any
of the Company's debt securities or preferred stock by any Rating Agency shall
have been lowered since the time this Agreement was executed or if any Rating
Agency shall have publicly announced since the time this Agreement was executed
that it has placed its rating of the Securities or any of the Company's debt
securities or preferred stock under surveillance or review, with possible
negative implications.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then [Underwriter] shall have the right, within 36
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, [Underwriter] shall not have completed such
arrangements within such 36-hour period, then:
(a) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations under such Terms Agreement
bear to the underwriting obligations of all non-defaulting
Underwriters, or
24
<PAGE>
(b) if the number or aggregate principal amount, as the case may be, of
Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased
on such date pursuant to such Terms Agreement, such Terms Agreement
(or, with respect to the Underwriters' exercise of any applicable
over-allotment option for the purchase of Option Underwritten
Securities on a Date of Delivery after the Closing Time, the
obligations of the Underwriters to purchase, and the Company to sell,
such Option Underwritten Securities on such Date of Delivery) shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a termination
of the applicable Terms Agreement or (ii) in the case of a Date of Delivery
after the Closing Time, a termination of the obligations of the Underwriters and
the Company with respect to the related Option Underwritten Securities, as the
case may be, either [Underwriter] or the Company shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to [Underwriter] at [Underwriter's Address],
attention of [*]; and notices to the Company shall be directed to it at 80 Park
Plaza, P.O. Box 1171, Newark, New Jersey, attention of James T. Foran Esq,
Associate General Counsel.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon the Company,
[Underwriter] and, upon execution of such Terms Agreement, any other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement or such Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the Underwriters
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or such Terms Agreement or any provision
herein or therein contained. This Underwriting Agreement and such Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
25
<PAGE>
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW JERSEY. SPECIFIED TIMES OF DAY REFER TO NEW YORK
CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
26
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between [Underwriter] and the Company in accordance with its terms.
Very truly yours,
PUBLIC SERVICE ENTERPRISE
GROUP INCORPORATED
By
-----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
[UNDERWRITER]
By
------------------------------
Authorized Signatory
27
<PAGE>
Exhibit A
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(a New Jersey)
Debt Securities
TERMS AGREEMENT
[ ], 1998
To: Public Service Enterprise Group Incorporated
[address of Issuer]
Ladies and Gentlemen:
We understand that Public Service Enterprise Group Incorporated, a New
Jersey corporation (the "Company"), proposes to issue and sell $ aggregate
principal amount of its [senior] [subordinated] debt securities (the "Debt
Securities") [senior] [subordinated] debt securities ([such securities also
being hereinafter referred to as] the "[Initial] Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, we [the underwriters named below (the "Underwriters")] offer to
purchase, severally and not jointly, the principal amount of Underwritten
Securities opposite their names set forth below at the purchase price set forth
below [, and a proportionate share of Option Underwritten Securities set forth
below, to the extent any are purchased].
A-1
<PAGE>
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
- --------------------------------------------------------------------------------
-----------------------------
Total [$]
========================
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: %
of the principal amount, plus accrued interest [amortized original
issue discount], if any, from _________________.
Purchase price per security: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED -- Debt Securities --
Underwriting Agreement" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
A-2
<PAGE>
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
[Underwriter ]
By
---------------------------------------
Authorized Signatory
[Acting on behalf of itself and the
other named Underwriters.]
Accepted:
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
By
------------------------------------------
Name:
Title:
A-3
<PAGE>
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New Jersey.
(2) The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a Material Adverse Effect.
(4) Each Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect. Except as otherwise stated in the Registration
Statement and the Prospectus, all of the issued and outstanding capital stock of
each Subsidiary has been duly authorized and is validly issued, fully paid and
non-assessable and, to the best of [our] [my] knowledge, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the
outstanding shares of capital stock of any Subsidiary was issued in violation of
preemptive or other similar rights of any securityholder of such Subsidiary.
(5) The authorized, issued and outstanding shares of capital stock of the
Company is as set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any, contemplated
under the Underwriting Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the Prospectus). Such shares
of capital stock have been duly authorized and validly issued by the Company and
are fully paid and non-assessable, and none of such shares of capital stock was
issued in violation of preemptive or other similar rights of any securityholder
of the Company.
(6) The Underwriting Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company.
B-1
<PAGE>
(7) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or Subordinated
Debt Securities --] The Underwritten Securities have been duly authorized by the
Company for issuance and sale pursuant to the Underwriting Agreement and the
applicable Terms Agreement. The Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such Terms
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with respect to
any Debt Securities payable in a foreign or corporate currency (or a foreign or
composite currency judgment in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law or by governmental authority to limit, delay or prohibit the
making of payments outside the United States. The Underwritten Securities are in
the form contemplated by, and each registered holder thereof is entitled to the
benefits of, the applicable Indenture.
(8) [Include if the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Senior Debt Securities and/or Subordinated
Debt Securities --] [The] [Each] applicable Indenture has been duly authorized,
executed and delivered by the Company and (assuming due authorization, execution
and delivery thereof by the applicable Trustee) constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(9) The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and the [each] applicable [Indenture] conform, when issued and
delivered in accordance with the terms of the related Underwritten Securities,
will conform, in all material respects to the statements relating thereto
contained in the Prospectus and are in substantially the form filed or
incorporated by reference, as the case may be, as an exhibit to the Registration
Statement.
(10) The information in the Prospectus under "Description of Debt
Securities" or any caption purporting to describe any such Securities, ["Certain
Federal Income Tax Considerations" and "[*]", in the Annual Report on Form 10-K
under "[*]"] and in the Registration Statement under Item 15, to the extent that
it constitutes matters of law, summaries of legal matters or the Company's
charter, bylaws or legal proceedings, or legal conclusions, has been reviewed by
[us] [me] them and is correct in all material respects; and [our] [my] opinion
set forth under "Certain Federal Income Tax Considerations" is confirmed.
B-2
<PAGE>
(11) To the best of [our] [my] knowledge, neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws and no default by the
Company or any of its subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
(12) The execution, delivery and performance of the Underwriting Agreement,
the applicable Terms Agreement and the [each] applicable [Indenture] and any
other agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated in the
Registration Statement and the Prospectus and the consummation of the
transactions contemplated in the Underwriting Agreement and such Terms Agreement
and in the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of Proceeds")
and compliance by the Company with its obligations thereunder do not and will
not, whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or any of its subsidiaries
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to [us] [me],
to which the Company or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the assets, properties or operations of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to [us] [me], of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets, properties
or operations.
(13) To the best of [our] [my] knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation to which the
Company or any of its subsidiaries thereof is a party or to which the assets,
properties or operations of the Company or any of its subsidiaries thereof is
subject, before or by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a Material Adverse
Effect or which might reasonably be expected to materially and adversely affect
the assets, properties or operations thereof or the consummation of the
transactions contemplated under the Underwriting Agreement, the applicable Terms
Agreement or the [any] applicable [Indenture] or the performance by the Company
of its obligations thereunder.
(14) All descriptions in the Prospectus of contracts and other documents to
which the Company or its subsidiaries are a party are accurate in all material
respects. To the best of [our] [my] knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Prospectus or to be
filed as exhibits to the Registration Statement other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
B-3
<PAGE>
(15) To the best of [our] [my] knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(16) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of [our] [my] knowledge, no
stop order suspending the effectiveness of the Registration Statement (or such
Rule 462(b) Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been initiated or are pending or threatened by
the Commission.
(17) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which [we] [I] express no
opinion) complied as to form in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations.
(18) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules therein or omitted therefrom,
as to which [we] [I] express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the 1933 Act or the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder.
(19) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due authorization,
execution or delivery by the Company of the Underwriting Agreement or the
applicable Terms Agreement or for the performance by the Company of the
transactions contemplated under the Prospectus, the Underwriting Agreement, such
Terms Agreement or the [any] applicable [Indenture], other than under the 1933
Act, the 1933 Act Regulations, the 1939 Act and the 1939 Act Regulations, which
have already been made, obtained or rendered, as applicable.
(20) The [Each] applicable Indenture has been duly qualified under the 1939
Act.
(21) The [Underwritten] Securities, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the "Commodity
Exchange Act Regulations").
(22) The Company is not, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the net proceeds
therefrom as described
B-4
<PAGE>
in the Prospectus will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
Nothing has come to [our] [my] attention that would lead [us] [me] to
believe that the Registration Statement (including any Rule 462(b) Registration
Statement) or any post-effective amendment thereto (except for financial
statements and supporting schedules and other financial data included therein or
omitted therefrom and for the Form T-1s, as to which [we] [I] make no
statement), at the time the Registration Statement (including any Rule 462(b)
Registration Statement) or any post-effective amendment thereto (including the
filing of the Company's Annual Report on Form 10-K with the Commission) became
effective or at the date of the applicable Terms Agreement, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto (except for financial
statements and supporting schedules and other financial data included therein
or omitted therefrom, as to which [we] [I] make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
B-5
<PAGE>
Annex I
[FORM OF ACCOUNTANTS' COMFORT LETTER PURSUANT TO SECTION 5(e)]
We are independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations
and:
(i) in our opinion, the audited consolidated financial statements and the
related financial statement schedules included or incorporated by reference
in the Registration Statement and the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of the
unaudited interim consolidated financial statements of the Company for the
[three- month periods ended _________, 19__ and _________, 19__, the three-
and six-month periods ended _________, 19__ and _________, 19__ and the
three- and nine-month periods ended _________, 19__ and _________, 19__,
included or incorporated by reference in the Registration Statement and the
Prospectus (collectively, the "10-Q Financials")] [, a reading of the
unaudited interim consolidated financial statements of the Company for the
_____-month periods ended _________, 19___ and _________, 19___, included
or incorporated by reference in the Registration Statement and the
Prospectus (the "_____-month financials")] [, a reading of the latest
available unaudited interim consolidated financial statements of the
Company], a reading of the minutes of all meetings of the stockholders and
directors of the Company and its subsidiaries and committees thereof since
[day after end of last audited period], inquiries of certain officials of
the Company and its subsidiaries responsible for financial and accounting
matters, a review of interim financial information in accordance with
standards established by the American Institute of Certified Public
Accountants in Statement on Auditing Standards No. 71, Interim Financial
Information ("SAS 71"), with respect to the [description of relevant
periods] and such other inquiries and procedures as may be specified in
such letter, nothing came to our attention that caused us to believe that:
(A) the 10-Q Financials included or incorporated by reference in
the Registration Statement and the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the 1934 Act and the 1934 Act Regulations applicable to unaudited
financial statements included in Form 10-Q or any material
modifications should be made to the 10-Q Financials included or
incorporated by reference in the
Annex I-1
<PAGE>
Registration Statement and the Prospectus for them to be in conformity
with generally accepted accounting principles;
[(B) the _____-month financials included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included in
registration statements or any material modifications should be made
to the _____-month financials included in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;]
(C) at [_________, 19___ and at] a specified date not more than
five days prior to the date of the applicable Terms Agreement, there
was any change in the ___________ of the Company and its subsidiaries,
any decrease in the __________ of the Company and its subsidiaries or
any increase in the __________ of the Company and its subsidiaries, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Registration Statement
and the Prospectus, except in each case for any changes, decreases or
increases that the Registration Statement and the Prospectus disclose
have occurred or may occur; or
(D) for the period from [_________, 19__ to _________, 19__ and
for the period from] _________, 19__ to a specified date not more than
five days prior to the date of the applicable Terms Agreement, there
was any decrease in _________, __________ or ___________, in each case
as compared with the comparable period in the preceding year, except
in each case for any decreases that the Registration Statement and the
Prospectus discloses have occurred or may occur;
[(iii) based upon the procedures set forth in clause (ii) above and a
reading of the Selected Financial Data included or incorporated by
reference in the Registration Statement and the Prospectus [and a reading
of the financial statements from which such data were derived], nothing
came to our attention that caused us to believe that the Selected Financial
Data included or incorporated by reference in the Registration Statement
and the Prospectus do not comply as to form in all material respects with
the disclosure requirements of Item 301 of Regulation S-K of the 1933 Act
[, that the amounts included in the Selected Financial Data are not in
agreement with the corresponding amounts in the audited consolidated
financial statements for the respective periods or that the financial
statements not included or incorporated by reference in the Registration
Statement and the Prospectus from which certain of such data were derived
are not in conformity with generally accepted accounting principles;]
Annex I-2
<PAGE>
(iv) we have compared the information included or incorporated by reference
in the Registration Statement and the Prospectus under selected captions
with the disclosure requirements of Regulation S-K of the 1933 Act and on
the basis of limited procedures specified herein, nothing came to our
attention that caused us to believe that such information does not comply
as to form in all material respects with the disclosure requirements of
Items 302, 402 and 503(d), respectively, of Regulation S-K;
[(v) based upon the procedures set forth in clause (ii) above, a reading of
the latest available unaudited financial statements of the Company that
have not been included or incorporated by reference in the Registration
Statement and the Prospectus and a review of such financial statements in
accordance with SAS 71, nothing came to our attention that caused us to
believe that the unaudited amounts for ________ for the [most recent
period] do not agree with the amounts set forth in the unaudited
consolidated financial statements for those periods or that such unaudited
amounts were not determined on a basis substantially consistent with that
of the corresponding amounts in the audited consolidated financial
statements;]
[(vi) we are unable to and do not express any opinion on the [Pro Forma
Combined Balance Sheet and Statement of Operations] (collectively, the "Pro
Forma Statements") included or incorporated by reference in the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statements;
however, for purposes of this letter we have:
(A) read the Pro Forma Statements;
(B) performed [an audit] [a review in accordance with SAS 71] of the
financial statements to which the pro forma adjustments were applied;
(C) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis
for their determination of the pro forma adjustments and whether the
Pro Forma Statements comply as to form in all material respects with
the applicable accounting requirements of Rule 11-02 of Regulation
S-X; and
(D) proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the Pro Forma Statements; and
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe that
the Pro Forma
Annex I-3
<PAGE>
Statements included or incorporated by reference in the Registration Statement
and the Prospectus do not comply as to form in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of those statements;]
(vii) in addition to the procedures referred to in clause (ii) above, we
have performed other procedures, not constituting an audit, with respect to
certain amounts, percentages, numerical data and financial information
included or incorporated by reference in the Registration Statement and the
Prospectus, which are specified herein, and have compared certain of such
items with, and have found such items to be in agreement with, the
accounting and financial records of the Company; and
[(viii) in addition, we [add comfort on a financial forecast that is
included or incorporated by reference in the Registration Statement and the
Prospectus].
Annex I-4
DRAFT OF MARCH 25, 1998
================================================================================
Public Service Enterprise Group Incorporated
To
First Union National Bank,
Trustee
Indenture
---------------------
Dated as of ________ __, 1998
-----------------------
Providing for the Issuance
of
Senior Debt Securities
================================================================================
<PAGE>
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _____ __, 1998
Trust Indenture
Indenture Act Section Section
ss.310(a)(1) 607
(a)(2) 607
(b) 608
ss.312(c) 701
ss.314(a) 703
(a)(4) 1005
(c)(1) 102
(c)(2) 102
(e) 102
ss.315(b) 601
ss.316(a) (last sentence) 101
("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
ss. 317(a)(1) 503
(a)(2) 504
ss. 318(a) 111
(c) 111
- ----------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<TABLE>
<S> <C>
SECTION 101. Definitions........................................................................................
SECTION 102. Compliance Certificates and Opinions...............................................................
SECTION 103. Form of Documents Delivered to Trustee.............................................................
SECTION 104. Acts of Holders....................................................................................
SECTION 105. Notices, Etc., to Trustee and Company..............................................................
SECTION 106. Notice to Holders; Waiver..........................................................................
SECTION 107. Effect of Headings and Table of Contents...........................................................
SECTION 108. Successors and Assigns.............................................................................
SECTION 109. Separability Clause................................................................................
SECTION 110. Benefits of Indenture..............................................................................
SECTION 111. Governing Law......................................................................................
SECTION 112. Legal Holidays.....................................................................................
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities................................................................................
SECTION 202. Form of Trustee's Certificate of Authentication....................................................
SECTION 203. Securities Issuable in Global Form.................................................................
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series...............................................................
SECTION 302. Denominations......................................................................................
SECTION 303. Execution, Authentication, Delivery and Dating.....................................................
SECTION 304. Temporary Securities...............................................................................
SECTION 305. Registration, Registration of Transfer and Exchange................................................
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...................................................
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset............................
SECTION 308. Optional Extension of Maturity.....................................................................
SECTION 309. Persons Deemed Owners..............................................................................
SECTION 310. Cancellation.......................................................................................
SECTION 311. Computation of Interest............................................................................
SECTION 312. CUSIP Numbers......................................................................................
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
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SECTION 401. Satisfaction and Discharge of Indenture............................................................
SECTION 402. Application of Trust Funds.........................................................................
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default..................................................................................
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................................................
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee....................................
SECTION 504. Trustee May File Proofs of Claim...................................................................
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.............................
SECTION 506. Application of Money Collected.....................................................................
SECTION 507. Limitation on Suits................................................................................
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest..........................
SECTION 509. Restoration of Rights and Remedies.................................................................
SECTION 510. Rights and Remedies Cumulative.....................................................................
SECTION 511. Delay or Omission Not Waiver.......................................................................
SECTION 512. Control by Holders of Securities...................................................................
SECTION 513. Waiver of Past Defaults............................................................................
SECTION 514. Waiver of Stay or Extension Laws...................................................................
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.................................................................................
SECTION 602. Certain Rights of Trustee..........................................................................
SECTION 603. Not Responsible for Recitals or Issuance of Securities.............................................
SECTION 604. May Hold Securities................................................................................
SECTION 605. Money Held in Trust................................................................................
SECTION 606. Compensation and Reimbursement. The Company agrees:................................................
SECTION 607. Corporate Trustee Required; Eligibility............................................................
SECTION 608. Resignation and Removal; Appointment of Successor..................................................
SECTION 609. Acceptance of Appointment by Successor.............................................................
SECTION 610. Merger, Conversion, Consolidation or Succession to Business........................................
SECTION 611. Appointment of Authenticating Agent................................................................
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701. Disclosure of Names and Addresses of Holders.......................................................
SECTION 702. Reports by Trustee.................................................................................
SECTION 703. Reports by Company. The Company will:..............................................................
SECTION 704. Calculation of Original Issue Discount.............................................................
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...............................................
SECTION 802. Successor Person Substituted.......................................................................
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.................................................
SECTION 902. Supplemental Indentures with Consent of Holders....................................................
SECTION 903. Execution of Supplemental Indentures...............................................................
SECTION 904. Effect of Supplemental Indentures..................................................................
SECTION 905. Conformity with Trust Indenture Act................................................................
SECTION 906. Reference in Securities to Supplemental Indentures.................................................
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest...............................................
SECTION 1002. Maintenance of Office or Agency...................................................................
SECTION 1003. Money for Securities Payments to Be Held in Trust.................................................
SECTION 1004. Additional Amounts................................................................................
SECTION 1005. Statement as to Compliance........................................................................
SECTION 1006. Waiver of Certain Covenants.......................................................................
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article..........................................................................
SECTION 1102. Election to Redeem; Notice to Trustee.............................................................
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SECTION 1103. Selection by Trustee of Securities to Be Redeemed.................................................
SECTION 1104. Notice of Redemption..............................................................................
SECTION 1105. Deposit of Redemption Price.......................................................................
SECTION 1106. Securities Payable on Redemption Date.............................................................
SECTION 1107. Securities Redeemed in Part.......................................................................
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article..........................................................................
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.............................................
SECTION 1203. Redemption of Securities for Sinking Fund.........................................................
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article..........................................................................
SECTION 1302. Repayment of Securities...........................................................................
SECTION 1303. Exercise of Option................................................................................
SECTION 1304. When Securities Presented for Repayment Become Due and Payable....................................
SECTION 1305. Securities Repaid in Part.........................................................................
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance............
SECTION 1402. Defeasance and Discharge..........................................................................
SECTION 1403. Covenant Defeasance...............................................................................
SECTION 1404. Conditions to Defeasance or Covenant Defeasance...................................................
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions..................................................................................
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.........................................................
SECTION 1502. Call, Notice and Place of Meetings................................................................
SECTION 1503. Persons Entitled to Vote at Meetings..............................................................
SECTION 1504. Quorum; Action....................................................................................
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SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings...............................
SECTION 1506. Counting Votes and Recording Action of Meetings...................................................
EXHIBIT A
EXHIBIT A-1
EXHIBIT A-2
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INDENTURE, dated as of ___________, 1998, between PUBLIC SERVICE ENTERPRISE
GROUP INCORPORATED, a New Jersey corporation (hereinafter called the "Company"),
having its principal office at 80 Park Plaza, Newark, NJ 07102, and FIRST UNION
NATIONAL BANK, a national banking association organized and existing under the
laws of the United States of America, as Trustee (hereinafter called the
"Trustee"), having a Corporate Trust Office at 765 Broad Street, Newark, NJ
07101.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes senior debt securities (hereinafter called the "Securities") evidencing
its unsecured and unsubordinated indebtedness, which may or may not be
convertible into or exchangeable for any securities of any Person (including the
Company), and has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of the Securities, unlimited as to
principal amount, to bear such rates of interest, to mature at such times and to
have such other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities and coupons, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five, Article Six
and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"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. For the purposes of this definition,
"control" when used with respect to any specified Person 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.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an 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.
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"Business Day", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or particular location are
authorized or obligated by law or executive order to close.
"CEDEL" means Cedel Bank or its successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman, the President or a
Vice President, the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be administered, which
office at the date hereof is located at 765 Broad Street, Newark, NJ 07101.
"corporation" includes corporations, associations, companies and business
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar", "Dollars" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European Coal and
Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Five.
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"Government Obligations" means securities which are (i) direct obligations
of the United States of America or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, of
securities, Currencies, intangibles, goods, articles or commodities or by such
other objective price, economic or other measures as are specified in Section
301 hereof.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
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"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, notice of exchange or conversion or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman, the
President or any Vice President or by the Treasurer, an Assistant Treasurer, the
Controller or an Assistant Controller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the
5
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amount of principal thereof that would be (or shall have been declared to be)
due and payable, at the time of such determination, upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, (ii) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301 and (iii) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest, if any, on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium, if
any) and interest, if any, on such Securities are payable as specified and as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is registered in the
Security Register.
6
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"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" means any corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person,
7
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"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 1005)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified
8
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Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion as to some
matters and one or more other such Persons as to other matters, and any such
Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
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(b) The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may be proved in any manner
that the Trustee deems reasonably sufficient.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depository, by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner that the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, 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. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. 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 the 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 Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
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SECTION 105. Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
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publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause. In case any provision in this Indenture
or in any Security or coupon 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 110. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the law of the State of
New Jersey without regard to principles of conflicts of laws. This Indenture is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 112. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or any Security or
coupon other than a provision in the Securities of any series which specifically
states that such provision shall apply in lieu of this Section), payment of
principal (or premium, if any) or interest, if any, need not be
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made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity; provided that
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed 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 stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject to
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By___________________________
Authorized Signatory
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SECTION 203. Securities Issuable in Global Form. If Securities of or within
a series are issuable in global form, as specified as contemplated by Section
301, then, notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or 304. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement, delivery or redelivery
of a Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of (and premium, if any)
and interest, if any, on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
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The Securities shall rank equally and pari passu and may be issued in one
or more series. There shall be established in one or more Board Resolutions or
pursuant to authority granted by one or more Board Resolutions and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1), (2)
and (15) below), if so provided, may be determined from time to time by the
Company with respect to unissued Securities of the series when issued from time
to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which such interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, or the date or dates on which,
the price or prices at which and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the
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option of a Holder thereof, and the period or periods within which or the
date or dates on which, the price or prices at which and other terms and
conditions upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than denominations
of $5,000, the denomination or denominations in which any Bearer Securities
of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(11) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(12) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(13) any deletions from, modifications of or additions to the Events
of Default or covenants (including any deletions from, modifications of or
additions to any of the provisions of Section 1006) of the Company with
respect to Securities of the series, whether or not such Events of Default
or covenants are consistent with the Events of Default or covenants set
forth herein;
(14) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series in certificated form and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 305,
and, if Registered Securities of the series are to be issuable as a global
Security, the identity of the depository for such series;
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(15) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(16) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(17) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen;
(18) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(19) whether, under what circumstances, the Company will pay
Additional Amounts as contemplated by Section 1004 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(20) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirements of
the Trust Indenture Act).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s)
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shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series shall be issuable
in such denominations as shall be specified as contemplated by Section 301. With
respect to Securities of any series denominated in Dollars, in the absence of
any such provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global
form (which may be of any denomination) shall be issuable in denominations of
$1,000 and any integral multiple thereof, and the Bearer Securities of such
series, other than Bearer Securities issued in global form (which may be of any
denomination), shall be issuable in a denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The Securities
and any coupons appertaining thereto shall be executed on behalf of the Company
by its Chairman, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
and coupons may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons 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 Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by
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Section 306, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
canceled. If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities and any coupons; and
(ii) an Officers' Certificate stating, to the best of the knowledge of
the signers of such certificate, that no Event of Default with respect to
any of the Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section 301 and of this Section 303, if
all the Securities of any series are not to be issued at one time, it shall not
be necessary to deliver an Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order, Opinion of Counsel or Officers' Certificate
otherwise required pursuant to the preceding paragraph at the time of issuance
of each Security of such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall be delivered at
or before the time of issuance of the first Security of such series.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect
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the Trustee's own rights, duties, obligations or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee or an
Authenticating Agent by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 310 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in
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Section 303. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depository or common depository (the "Common
Depository"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depository to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depository, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or CEDEL, as the case may be, a certificate in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of
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charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee
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shall cease to be Security Registrar, it shall have the right to examine the
Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered Security of
any series at any office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series, of any authorized denominations
and of a like aggregate principal amount, bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denomination or denominations and of a like aggregate principal amount,
containing identical terms and provisions, upon surrender of the Registered
Securities to be exchanged at any such office or agency. Whenever any Registered
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless otherwise specified
with respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 303) set forth in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as
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the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon when
due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such permanent
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depository or such other depository as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and provided further that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15 days before
selection of the Securities to be redeemed under Section 1103 and ending at the
close of business on (A) if such Securities are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if such Securities are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if such Securities are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except, in the case of any Registered Security to be redeemed in part, the
portion thereof not to be redeemed, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption, or (iv)
to issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any agent of either of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
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request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, 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) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section 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 Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset. (a) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, interest, if any,
on any Registered Security that 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 Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest, if any, on any Registered
Security may at the Company's option be paid by (i) mailing a check for such
interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 309, to the address of
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such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest, if any, may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and CEDEL with respect to that
portion of such permanent global Security held for its account by the Common
Depository, for the purpose of permitting each of Euroclear and CEDEL to credit
the interest, if any, received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that 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 registered Holder thereof 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) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) 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
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in Dollars equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or 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. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to
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the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the
close of business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "Optional Reset
Date"). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to an Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (the "Reset
Notice") indicating whether the Company has elected to reset the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to the Stated Maturity of such
Security (each such period a "Subsequent Interest Period"), including the date
or dates on which or the period or periods during which and the price or prices
at which such redemption may occur during the Subsequent Interest Period.
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Notwithstanding the foregoing, not later than 20 days prior to the Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish a higher interest rate (or a
spread or spread multiplier providing for a higher interest rate, if applicable)
for the Subsequent Interest Period by causing the Trustee to transmit, in the
manner provided for in Section 106, notice of such higher interest rate (or such
spread or spread multiplier providing for a higher interest rate, if applicable)
to the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the interest rate (or the spread or spread multiplier used
to calculate such interest rate, if applicable) is reset on an Optional Reset
Date, and with respect to which the Holders of such Securities have not tendered
such Securities for repayment (or have validly revoked any such tender) pursuant
to the next succeeding paragraph, will bear such higher interest rate (or such
spread or spread multiplier providing for a higher interest rate, if
applicable).
The Holder of any such Security may have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional
Reset Date and except that, if the Holder has tendered any Security for
repayment pursuant to the Reset Notice, the Holder may, by written notice to the
Trustee, revoke such tender or repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Optional Extension of Maturity. The provisions of this Section
308 may be made applicable to any series of Securities pursuant to Section 301
(with such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The Stated Maturity of any Security of such
series may be extended at the option of the Company for the period or periods
specified on the face of such Security (each an "Extension Period") up to but
not beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice (the "Extension Notice") indicating (i) the election of
the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii)
the interest rate (or spread, spread multiplier or other formula to calculate
such interest rate, if applicable), if any, applicable to the Extension Period
and (iv) the provisions, if any, for redemption during such Extension Period.
Upon the Trustee's transmittal of the Extension Notice, the Stated Maturity of
such Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next
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paragraph, such Security will have the same terms as prior to the transmittal of
such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate (or spread, spread multiplier or other formula used to calculate
such interest rate, if applicable) provided for in the Extension Notice and
establish a higher interest rate (or spread, spread multiplier or other formula
used to calculate such higher interest rate, if applicable) for the Extension
Period by causing the Trustee to transmit, in the manner provided for in Section
106, notice of such higher interest rate (or spread, spread multiplier or other
formula used to calculate such interest rate, if applicable) to the Holder of
such Security. Such notice shall be irrevocable. All Securities with respect to
which the Stated Maturity is extended will bear such higher interest rate.
If the Company extends the Stated Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Registered Security and for all
other purposes whatsoever, whether or not such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
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Notwithstanding the foregoing, with respect to any global Security, 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 any depository, as a Holder, with respect to such
global Security or impair, as between such depository and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depository (or its nominee) as
Holder of such global Security.
SECTION 310. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. Canceled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it.
SECTION 311. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest,
if any, on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 312. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
indicate the "CUSIP" numbers of the Securities in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption and that reliance
may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall
upon Company Request cease to be of further effect with respect to any series of
Securities specified in such Company Request (except as to any surviving rights
of registration of
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transfer or exchange of Securities of such series expressly provided for herein
or pursuant hereto and any right to receive Additional Amounts, as provided in
Section 1004), and the Trustee, upon receipt of a Company Order, and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in Dollars sufficient to pay and discharge
the entire indebtedness on such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if
any) and interest, if any, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of the
last paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest, if any, for whose payment
such money has been deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever used herein
with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be 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):
(1) default in the payment of any interest upon any Security of that
series or of any coupon appertaining thereto, when such interest or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture with respect to any Security of
that series (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
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25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(6) 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,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; or
(7) any other Event of Default provided with respect to Securities of
that series.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy
Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in Dollars (except as otherwise specified pursuant to
Section 301 for the Securities of such series):
(A) all overdue installments of interest, if any, on all
Outstanding Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) all Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or
interest on Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Security of any series and any related coupon when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, with interest upon any overdue principal
(and premium, if any) and, to the extent that payment of such interest
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shall be legally enforceable, upon any overdue installments of interest, if any,
at the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. 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 any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
any overdue principal, premium or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (or in
the case of Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be provided for in the terms thereof) (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities 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
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons 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 to the Trustee any amount due to
it
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for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, if any, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest, if
any, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the aggregate amounts due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or any
other Person or Persons entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any Security of any series
or any related coupon shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
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(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Sections 305 and 307) interest, if any, on such Security or payment
of such coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted
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by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
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SECTION 514. Waiver of Stay or Extension 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 wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of 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 SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence of any
Default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the case of a
Default in the payment of the principal of (or premium, if any) or interest, if
any, on any Security of such series, or in the payment of any sinking or
purchase fund installment with respect to the Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any Default
or breach of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(2) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.
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(3) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon a Board Resolution, an Opinion of Counsel or
an Officers' Certificate.
(4) The Trustee may consult with counsel 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.
(5) 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 of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction.
(6) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney.
(7) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(8) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and
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deliver this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) To pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as has been agreed upon in writing (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust).
(2) Except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith.
(3) To indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its own part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, 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.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest, if
any, on particular Securities or any coupons.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in ss.501(5) or (6) occurs, the expenses and compensation for
the services are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 607. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be eligible to act as Trustee under TIA
Section 310(a)(1) and shall have a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
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competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of a notice of
resignation or the delivery of an Act of removal, the Trustee resigning or being
removed may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(f) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
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(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any
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such successor Trustee may authenticate and deliver such Securities or coupons,
in either its own name or that of its predecessor Trustee, with the full force
and effect which this Indenture provides for the certificate of authentication
of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, a
copy of which instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and, except as may
otherwise be provided pursuant to Section 301, shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $1,500,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Company. The Trustee for any series of Securities may at any time terminate
the agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities
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of the series with respect to which such Authenticating Agent will serve in the
manner set forth in Section 106. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By ____________________________
as Authenticating Agent
By ____________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder of
Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such May
15 if required by TIA Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee of the listing of the Securities on any stock
exchange.
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then
it will
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file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Calculation of Original Issue Discount. Upon request of the
Trustee, the Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods), if any, accrued on Outstanding
Securities as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge with or into any other corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Company substantially as an
entirety shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if any) and
interest, if any, on all the Securities and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Default or
Event of Default shall have happened and be continuing; and
(3) the Company and the successor Person have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that such
consolidation,
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merger, conveyance or transfer and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
SECTION 802. Successor Person Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or the successor Person to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
had been named as the Company herein; and in the event of any such conveyance or
transfer, the Company shall be discharged from all obligations and covenants
under this Indenture and the Securities and coupons and may be dissolved and
liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default; or
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(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form; provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities pursuant to the requirements of Section
801, or otherwise; or
(7) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action shall not adversely affect
the interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this
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Indenture or of modifying in any manner the rights of the Holders of Securities
and any related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any Security,
subject to the provisions of Section 309; or reduce the principal amount
thereof or the rate of interest (or change the manner of calculating the
rate of interest, thereon, or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the portion of the principal of an
Original Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option of
the Holder of any Security, or change any Place of Payment where any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be), or adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities 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 Securities of any other series.
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 indenture
supplemental hereto. If a record
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date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture, whether or not such Holders remain Holders after such
record date; provided, that unless such consent shall have become effective by
virtue of the requisite percentage having been obtained prior to the date which
is 90 days after such record date, any such consent previously given shall
automatically and without further action by any Holder be canceled and of no
further effect.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, 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 Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures. Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article 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 Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of such series of Securities, any coupons appertaining thereto
and this Indenture. Any interest due on Bearer Securities on or before Maturity,
other than Additional Amounts, if any, payable as provided in Section 1004 in
respect of principal of (or premium, if any, on) such a Security, shall be
payable only upon presentation
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and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. Unless otherwise specified with
respect to Securities of any series pursuant to Section 301, at the option of
the Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest due on Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Company shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. If Securities of a series are issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
The City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where Securities of
that series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable, and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment; provided,
however, that if the Securities of that series are listed on the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange, and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where Securities of that series
that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the
Company shall fail to maintain 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 Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment at the offices specified in the
Security, in London,
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England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are payable in Dollars, payment of principal of (and
premium, if any) and interest, if any, on any Bearer Security shall be made at
the office of the Company's Paying Agent in the Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for such purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as Places of Payment for each series of Securities
the office or agency of the Company in the Borough of Manhattan, The City of New
York, and initially appoints the Trustee at its Corporate Trust Office as Paying
Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, on or before each due date
of the principal of (or premium, if any) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in Dollars (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (and premium, if any) and interest, if any, on Securities of such
series so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, on or before each due date of the
principal of (or premium, if any) or interest, if any, on any Securities of that
series, deposit with a Paying Agent a sum (in Dollars, as described in the
preceding paragraph) sufficient to pay the principal (or premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
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The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series and remaining unclaimed for two years after
such principal, premium or interest has become due and payable shall be paid to
the Company upon Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment of such
principal, premium or interest on any Security, without interest thereon, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. Additional Amounts. If the Securities of a series provide for
the payment of Additional Amounts, the Company will pay to the Holder of a
Security of such series or any coupon appertaining thereto Additional Amounts as
may be specified as contemplated by Section 301. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of (or premium,
if any) or interest, if any, on any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof pursuant to such terms and
express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal premium is made), and at
least 10 days prior to each date of payment of principal, premium or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal, premium or interest on
the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are not United States persons without
withholding for or on account of any tax,
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assessment or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of that series or related coupons
and the Company will pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. In the event that the Trustee
or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled (i) to assume that no such withholding or deduction is required with
respect to any payment of principal or interest with respect to any Securities
of a series or related coupons until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal and interest with
respect to the Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section or in reliance on the Company's not furnishing such an Officers'
Certificate.
SECTION 1005. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture. For purposes of this Section
1005, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1006. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition, and as
specified pursuant to Section 301(15) for Securities of any series, in any
covenants of the Company added to Article Ten pursuant to Section 301(14) or
Section 301 (15) in connection with the Securities of a series, if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities, by Act of such Holders, waive
such compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of any series issued on the same day with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified by the terms
of such series established pursuant to Section 301, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of
the proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section
1106 will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee for such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, which it may not do in the case
of a sinking fund payment under Article Twelve, segregate and hold in trust as
provided in Section 1003) an amount of money in Dollars (except as otherwise
specified pursuant to Section 301 for the
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Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless otherwise specified pursuant to Section 301)
accrued interest on, all the Securities or portions thereof which are to be
redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified in Dollars (except as otherwise specified pursuant to Section 301 for
the Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest, if any) such
Securities shall if the same were interest-bearing cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that installments of interest on Registered Securities whose Stated Maturity is
prior to (or, if specified pursuant to Section 301, on) the Redemption Date
shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Redemption Price shall, until paid, bear interest
from the Redemption Date at the rate of interest set forth in such Security or,
in the case of Original Issue Discount Security, at the Yield to Maturity of
such Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security which is
to be redeemed only in part (pursuant to the provisions of this Article or of
Article Twelve) shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee
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so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing) and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. However, if less than all the Securities of any
series with differing issue dates, interest rates and stated maturities are to
be redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The
Company may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities; provided that such Securities so delivered or
applied as a credit have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for Securities of any series, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion
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thereof, if any, which is to be satisfied by payment of cash in Dollars (except
as otherwise specified pursuant to Section 301 for the Securities of such
series) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities to be
so delivered and credited. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities and (except as otherwise
specified by the terms of such series established pursuant to Section 301) in
accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless
otherwise provided in the terms of such Securities, be repaid at the Repayment
Price thereof, together with interest, if any, thereon accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Company
covenants that on or before the Repayment Date it will deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money in
Dollars (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the Repayment Price of, and (unless
otherwise specified pursuant to Section 301) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. To be repaid at the option of
the Holder, any Security so providing for such repayment, with the "Option to
Elect Repayment" form on the reverse of such Security duly completed by the
Holder (or by the Holder's attorney duly authorized in writing), must be
received by the Company at the Place of Payment therefor specified in the terms
of such Security (or at such other place or places of which the Company shall
from time to time notify the Holders of such Securities) not earlier than 45
days nor later than 30 days prior to the Repayment Date. If less than the entire
Repayment Price of such Security is to be repaid in accordance with the terms of
such Security, the portion of the Repayment Price of such Security to be repaid,
in increments of the minimum denomination for Securities of such series, and the
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denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of such Security surrendered that is not to be repaid,
must be specified. Any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the Repayment Price of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that installments of interest on
Registered Securities, whose Stated Maturity is prior to (or, if specified
pursuant to Section 301, on) the Repayment Date shall be payable (but without
interest thereon, unless the Company shall default in the payment thereof) to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security surrendered for repayment shall not be so repaid upon
surrender thereof, the Repayment Price shall, until paid, bear interest from the
Repayment Date at the rate
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of interest set forth in such Security or, in the case of an Original Issue
Discount Security, at the Yield to Maturity of such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any Registered
Security which is to be repaid in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If pursuant to Section 301 provision is made
for either or both of (a) defeasance of the Securities of or within a series
under Section 1402 or (b) covenant defeasance of the Securities of or within a
series under Section 1403, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 301 with respect
to any Securities), shall be applicable to such Securities and any coupons
appertaining thereto, and the Company may at its option by Board Resolution, at
any time, with respect to such Securities and any coupons appertaining thereto,
elect to have Section 1402 (if applicable) or Section 1403 (if applicable) be
applied to such Outstanding Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) of this Section, and to have satisfied all
its other obligations under such Securities and any coupons appertaining thereto
and this Indenture insofar as such Securities and any coupons appertaining
thereto are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Securities and any coupons appertaining
thereto to receive, solely from the trust fund described in Section 1404 and as
more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest, if any, on such Securities and any coupons
appertaining thereto when such payments are due, (B) the Company's obligations
with respect to such Securities under Sections 305, 306,
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1002 and 1003 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1004, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option under
this Section notwithstanding the prior exercise of its option under Section 1403
with respect to such Securities and any coupons appertaining thereto.
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SECTION 1403. Covenant Defeasance. Upon the Company's exercise of the above
option applicable to this Section with respect to any Securities of or within a
series, the Company shall be released from any obligations under any covenant
specified pursuant to Section 301, with respect to such Outstanding Securities
and any coupons appertaining thereto on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any coupons appertaining thereto shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenant, but shall continue to be deemed "Outstanding" for
all other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to such Outstanding Securities and any coupons appertaining
thereto, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under Section 501(4) or 501(7) or otherwise, as
the case may be, but, except as specified above, the remainder of this Indenture
and such Securities and any coupons appertaining thereto shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount in Dollars, or (2) Government
Obligations applicable to such Securities and coupons appertaining thereto
which, through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment of principal of (and premium, if any)
and interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof in an amount,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii)
any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the day
on which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto.
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(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Default or Event of Default with respect to such Securities and
any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(5) and 501(6) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
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SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest, if any, but such money need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or Government Obligations (or other property and any proceeds therefrom) held by
it as provided in Section 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. If Securities of a
series are issuable as Bearer Securities, a meeting of Holders of Securities of
such series may be called at any time and from time to time pursuant to this
Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at such place in the
Borough of Manhattan, The City of New York or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
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(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice,
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consent, waiver or other action which this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a
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temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting, and the meeting may be
held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
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* * * * *
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
By _____________________________________
[SEAL] Vice President and Treasurer
Attest:
__________________________________
[Assistant Secretary]
FIRST UNION NATIONAL BANK,
as Trustee
By _____________________________________
Vice President
[SEAL]
Attest:
__________________________________
[Assistant Secretary]
72
<PAGE>
STATE OF NEW JERSEY )
) ss:
COUNTY OF ESSEX )
On the ________________ day of _____, 1998, before me personally came
Morton A. Plawner to me known, who, being by me duly sworn, did depose and say
that he resides at ___________, New Jersey _____; that he is Vice President and
Treasurer of Public Service Enterprise Group Incorporated, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
[Notarial Seal]
_________________________
Notary Public
COMMISSION EXPIRES
STATE OF NEW JERSEY )
) ss:
COUNTY OF ESSEX )
On the ________________ day of _______, 1998, before me personally came
____________________________, to me known, who, being by me duly sworn, did
depose and say that he resides at _______________; that he is a ______________
of First Union National Bank, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
[Notarial Seal]
_________________________
Notary Public
COMMISSION EXPIRES
73
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities
to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Public Service Enterprise Group Incorporated or its agent
that such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
A-1
<PAGE>
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] _________ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ___________________, 19__
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
______________________________
(Authorized Signatory)
Name:
Title:
A-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL BANK IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities
to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of
the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise John Deere Capital Corporation or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
A-2-1
<PAGE>
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ___________________, 19__
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the Euroclear
System
[Cedel Bank]
By ___________________
A-2-2
DRAFT OF MARCH 25, 1998
================================================================================
Public Service Enterprise Group Incorporated
To
First Union National Bank,
Trustee
-----------------------------
Indenture
Dated as of ________ __, 1998
-----------------------------
Providing for the Issuance
of
Subordinated Debt Securities
================================================================================
<PAGE>
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _____ __, 1998
Trust Indenture
Indenture Act Section Section
ss. 310(a)(1) 607
(a)(2) 607
(b) 608
ss. 312(c) 701
ss. 314(a) 703
(a)(4) 1005
(c)(1) 102
(c)(2) 102
(e) 102
ss. 315(b) 601
ss. 316(a) (last sentence) 101
("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
ss. 317(a)(1) 503
(a)(2) 504
ss. 318(a) 111
(c) 111
- ----------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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SECTION 101. Definitions.............................................................................
SECTION 102. Compliance Certificates and Opinions....................................................
SECTION 103. Form of Documents Delivered to Trustee..................................................
SECTION 104. Acts of Holders.........................................................................
SECTION 105. Notices, Etc., to Trustee and Company...................................................
SECTION 106. Notice to Holders; Waiver...............................................................
SECTION 107. Effect of Headings and Table of Contents................................................
SECTION 108. Successors and Assigns..................................................................
SECTION 109. Separability Clause.....................................................................
SECTION 110. Benefits of Indenture...................................................................
SECTION 111. Governing Law...........................................................................
SECTION 112. Legal Holidays..........................................................................
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.....................................................................
SECTION 202. Form of Trustee's Certificate of Authentication.........................................
SECTION 203. Securities Issuable in Global Form......................................................
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series....................................................
SECTION 302. Denominations...........................................................................
SECTION 303. Execution, Authentication, Delivery and Dating..........................................
SECTION 304. Temporary Securities....................................................................
SECTION 305. Registration, Registration of Transfer and Exchange.....................................
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........................................
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset.................
SECTION 308. Optional Extension of Maturity..........................................................
SECTION 309. Persons Deemed Owners...................................................................
SECTION 310. Cancellation............................................................................
SECTION 311. Computation of Interest.................................................................
SECTION 312. Currency and Manner of Payments in Respect of Securities................................
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent............................
SECTION 314. CUSIP Numbers...........................................................................
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
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SECTION 401. Satisfaction and Discharge of Indenture.................................................
SECTION 402. Application of Trust Funds..............................................................
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.......................................................................
SECTION 502. Acceleration of Maturity; Rescission and Annulment......................................
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.........................
SECTION 504. Trustee May File Proofs of Claim........................................................
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons..................
SECTION 506. Application of Money Collected..........................................................
SECTION 507. Limitation on Suits.....................................................................
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest...............
SECTION 509. Restoration of Rights and Remedies......................................................
SECTION 510. Rights and Remedies Cumulative..........................................................
SECTION 511. Delay or Omission Not Waiver............................................................
SECTION 512. Control by Holders of Securities........................................................
SECTION 513. Waiver of Past Defaults.................................................................
SECTION 514. Waiver of Stay or Extension Laws........................................................
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults......................................................................
SECTION 602. Certain Rights of Trustee...............................................................
SECTION 603. Not Responsible for Recitals or Issuance of Securities..................................
SECTION 604. May Hold Securities.....................................................................
SECTION 605. Money Held in Trust.....................................................................
SECTION 606. Compensation and Reimbursement..........................................................
SECTION 607. Corporate Trustee Required; Eligibility.................................................
SECTION 608. Resignation and Removal; Appointment of Successor.......................................
SECTION 609. Acceptance of Appointment by Successor..................................................
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.............................
SECTION 611. Appointment of Authenticating Agent.....................................................
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
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SECTION 701. Disclosure of Names and Addresses of Holders............................................
SECTION 702. Reports by Trustee......................................................................
SECTION 703. Reports by Company.The Company will:....................................................
SECTION 704. Calculation of Original Issue Discount..................................................
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms....................................
SECTION 802. Successor Person Substituted............................................................
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders......................................
SECTION 902. Supplemental Indentures With Consent of Holders.........................................
SECTION 903. Execution of Supplemental Indentures....................................................
SECTION 904. Effect of Supplemental Indentures.......................................................
SECTION 905. Conformity with Trust Indenture Act.....................................................
SECTION 906. Reference in Securities to Supplemental Indentures......................................
SECTION 907. Effect on Senior Indebtedness...........................................................
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.....................................
SECTION 1002. Maintenance of Office or Agency.........................................................
SECTION 1003. Money for Securities Payments to Be Held in Trust.......................................
SECTION 1004. Additional Amounts......................................................................
SECTION 1005. Statement as to Compliance..............................................................
SECTION 1006. Waiver of Certain Covenants.............................................................
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................................................
SECTION 1102. Election to Redeem; Notice to Trustee...................................................
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.......................................
SECTION 1104. Notice of Redemption....................................................................
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SECTION 1105. Deposit of Redemption Price.............................................................
SECTION 1106. Securities Payable on Redemption Date...................................................
SECTION 1107. Securities Redeemed in Part.............................................................
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article................................................................
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities...................................
SECTION 1203. Redemption of Securities for Sinking Fund...............................................
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article................................................................
SECTION 1302. Repayment of Securities.................................................................
SECTION 1303. Exercise of Option......................................................................
SECTION 1304. When Securities Presented for Repayment Become Due and Payable..........................
SECTION 1305. Securities Repaid in Part...............................................................
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant
Defeasance..............................................................................
SECTION 1402. Defeasance and Discharge................................................................
SECTION 1403. Covenant Defeasance.....................................................................
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.........................................
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions................................................................
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called...............................................
SECTION 1502. Call, Notice and Place of Meetings......................................................
SECTION 1503. Persons Entitled to Vote at Meetings....................................................
SECTION 1504. Quorum; Action..........................................................................
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.....................
SECTION 1506. Counting Votes and Recording Action of Meetings.........................................
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ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
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SECTION 1601. Agreement to Subordinate................................................................
SECTION 1602. Distribution on Dissolution, Liquidation and Reorganization; Subrogation of
Securities..............................................................................
SECTION 1603. No Payment on Securities in Event of Default on Senior Indebtedness.....................
SECTION 1604. Payments on Securities Permitted........................................................
SECTION 1605. Authorization of Holders to Trustee to Effect Subordination.............................
SECTION 1606. Notices to Trustee......................................................................
SECTION 1607. Trustee as Holder of Senior Indebtedness................................................
SECTION 1608. Modifications of Terms of Senior Indebtedness...........................................
SECTION 1609. Reliance on Judicial Order or Certificate of Liquidating Agent Upon any payment
or distribution of assets of the Company referred to in this Article Sixteen............
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INDENTURE, dated as of ___________, 1998, between PUBLIC SERVICE ENTERPRISE
GROUP INCORPORATED, a New Jersey corporation (hereinafter called the "Company"),
having its principal office at 80 Park Plaza, Newark, NJ 07102, and FIRST UNION
NATIONAL BANK, a national banking association organized and existing under the
laws of the United States of America, as Trustee (hereinafter called the
"Trustee"), having a Corporate Trust Office at 765 Broad Street, Newark, NJ
07101.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes subordinated debt securities (hereinafter called the "Securities")
evidencing its unsecured and subordinated indebtedness, which may or may not be
convertible into or exchangeable for any securities of any Person (including the
Company), and has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of the Securities, unlimited as to
principal amount, to bear such rates of interest, to mature at such times and to
have such other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities and coupons, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
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(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five and Article
Six, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"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. For the purposes of this definition,
"control" when used with respect to any specified Person 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.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an 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.
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"Business Day", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or particular location are
authorized or obligated by law or executive order to close.
"CEDEL" means Cedel Bank or its successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at 765 Broad Street, Newark, NJ
07101.
"Corporation" includes corporations, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or currency
unit or currency units, including, without limitation, the ECU, issued by the
government of one or more countries or by any reorganized confederation or
association of such governments.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
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"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European Coal and
Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Rate Agent", with respect to Securities of or within any series,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, a New York Clearing House bank designated pursuant to Section 301
or Section 313.
"Exchange Rate Officer's Certificate" means a certificate setting forth (i)
the applicable Market Exchange Rate or the applicable bid quotation and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant currency or currency unit), payable with respect to a
Security of any series on the basis of such Market Exchange Rate or the
applicable bid quotation signed by the Treasurer, any Vice President or any
Assistant Treasurer of the Company.
"Foreign Currency" means any Currency, including, without limitation, the
ECU issued by the government of one or more countries other than the United
States of America or by any recognized confederation or association of such
governments.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the
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holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security as to which all or certain interest
payments and/or the principal amount payable at Maturity are determined by
reference to prices, changes in prices, or differences between prices, of
securities, Currencies, intangibles, goods, articles or commodities or by such
other objective price, economic or other measures as are specified in Section
301 hereof.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and
5
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(iii) for any conversion of one Foreign Currency into Dollars or another Foreign
Currency, the spot rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the Dollars or Foreign Currency into
which conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in either New York City,
London or any other principal market for Dollars or such purchased Foreign
Currency, in each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 301, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or other principal market
for such currency or currency unit in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any
currency or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency or currency unit
shall be that upon which a nonresident issuer of securities designated in such
currency or currency unit would purchase such currency or currency unit in order
to make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, notice of exchange or conversion or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman, the
President or any Vice President or by the Treasurer, an Assistant Treasurer, the
Controller or an Assistant Controller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such
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redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security or Indexed Security, the Dollar equivalent as
of such date of original issuance of the amount determined as provided in clause
(i) above or (iii) below, respectively) of such Security, (iii) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest, if any, on any Securities or
coupons on behalf of the Company.
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"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium, if
any) and interest, if any, on such Securities are payable as specified and as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee assigned by the Trustee to administer its corporate trust
matters.
"Security" or "Securities" has the meaning stated in the first recital of
this Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
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"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means the principal of and premium, if any, and
unpaid interest on (i) indebtedness of the Company (including indebtedness of
others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed (other
than Securities issued hereunder and the 7.44% Deferrable Interest Subordinated
Debentures, Series A of the Company), unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding it is provided
that such indebtedness is not senior or prior in right of payment to the
Securities, and (ii) renewals, extensions, modifications and refundings of any
such indebtedness. The Securities are senior and prior in right of payment to
the 7.44% Deferrable Interest Subordinated Debentures, Series A of the Company
and any guarantees issued in connection therewith and will be senior and prior
in right of payment to any debt securities or guarantees which may be issued in
connection with issuances of trust preferred securities by Enterprise Capital
Trust II or Enterprise Capital Trust III.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" means any corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company. For the purposes of this definition,
"voting stock" means stock having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
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"United States person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 1005)
shall include:
(1) a statement that each individual signing such certificate or opinion
has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
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matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may be proved in any manner
that the Trustee deems reasonably sufficient.
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(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depository, by any trust
company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner that the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, 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. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. 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 the 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 Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration Division, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in
the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
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Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause. In case any provision in this Indenture
or in any Security or coupon 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 110. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the law of the State of
New Jersey without regard to principles of conflicts of laws. This Indenture is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 112. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or any Security or
coupon other than a provision in the Securities of any series which specifically
states that such provision shall apply in lieu of this Section), payment of
principal (or premium, if any) or interest, if any, need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment
date, or at the Stated Maturity or Maturity; provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
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ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed 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 stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject to
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By___________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or within
a series are issuable in global form, as specified as contemplated by Section
301, then, notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be
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specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement, delivery or redelivery
of a Security in global form shall be in writing but need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of (and premium, if any)
and interest, if any, on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. The Securities shall be subordinated in right of payment
to Senior Indebtedness as provided in Article Sixteen.
The Securities shall rank equally and pari passu and may be issued in one
or more series. There shall be established in one or more Board Resolutions or
pursuant to authority granted by one or more Board Resolutions and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1), (2)
and (15) below), if so provided, may be determined from time to time by the
Company with respect to unissued Securities of the series when issued from time
to time):
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(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which such interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, or the date or dates on which,
the price or prices at which, the Currency or Currencies in which, and
other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the Company
is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which,
the Currency or Currencies in which, and other terms and conditions upon
which Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable and, if other than denominations
of $5,000, the denomination or denominations in which any Bearer Securities
of the series shall be issuable;
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(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency or Currencies in which
payment of the principal of (or premium, if any) or interest, if any, on
the Securities of the series shall be made or in which the Securities of
the series shall be denominated and the particular provisions applicable
thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 312;
(12) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula
or method may be based, without limitation, on one or more Currencies,
commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in one or more Currencies other than that
in which such Securities are denominated or stated to be payable, the
period or periods within which (including the Election Date), and the terms
and conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the Currency or Currencies
in which such Securities are denominated or stated to be payable and the
Currency or Currencies in which such Securities are to be paid, in each
case in accordance with, in addition to or in lieu of any of the provisions
of Section 312;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants (including any deletions from, modifications of or
additions to any of the provisions of Section 1006) of the Company with
respect to Securities of the series, whether or not such Events of Default
or covenants are consistent with the Events of Default or covenants set
forth herein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such
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interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in
Section 305, and, if Registered Securities of the series are to be issuable
as a global Security, the identity of the depository for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(21) whether, under what circumstances and the Currency in which, the
Company will pay Additional Amounts as contemplated by Section 1004 on the
Securities of the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect of
any tax, assessment or governmental charge and, if so, whether the Company
will have the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(22) the designation of the initial Exchange Rate Agent, if any;
(23) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirements of
the Trust Indenture Act).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered
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Securities, as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution (subject to Section 303) and set forth in such
Officers' Certificate or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. Denominations. The Securities of each series shall be issuable
in such denominations as shall be specified as contemplated by Section 301. With
respect to Securities of any series denominated in Dollars, in the absence of
any such provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global
form (which may be of any denomination) shall be issuable in denominations of
$1,000 and any integral multiple thereof, and the Bearer Securities of such
series, other than Bearer Securities issued in global form (which may be of any
denomination), shall be issuable in a denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The Securities
and any coupons appertaining thereto shall be executed on behalf of the Company
by its Chairman, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
and coupons may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons 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 Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of
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Securities pursuant to Section 301, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
and
(c) that such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed
and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by
the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, to
general equitable principles and to such other qualifications as
such counsel shall conclude do not materially affect the rights
of Holders of such Securities and any coupons; and
(ii) an Officers' Certificate stating, to the best of the knowledge of the
signers of such certificate, that no Event of Default with respect to any
of the Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section 301 and of this Section 303, if
all the Securities of any series are not to be issued at one time, it shall not
be necessary to deliver an
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Officers' Certificate otherwise required pursuant to Section 301 or the Company
Order, Opinion of Counsel or Officers' Certificate otherwise required pursuant
to the preceding paragraph at the time of issuance of each Security of such
series, but such order, opinion and certificates, with appropriate modifications
to cover such future issuances, shall be delivered at or before the time of
issuance of the first Security of such series.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee. Notwithstanding
the generality of the foregoing, the Trustee will not be required to
authenticate Securities denominated in a Foreign Currency if the Trustee
reasonably believes that it would be unable to perform its duties with respect
to such Securities.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee or an
Authenticating Agent by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 310 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities. Error! Bookmark not defined. Pending the
preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form, or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive
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Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and provided
further that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form. If temporary Securities of any series are issued in global form,
any such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depository or common depository (the "Common
Depository"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depository to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depository, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
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Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or CEDEL, as the case may be, a certificate in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or
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agency of the Company in a Place of Payment a register for each series of
Securities (the registers maintained in such office or in any such office or
agency of the Company in a Place of Payment being herein sometimes referred to
collectively as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities on such
Security Register as herein provided. In the event that the Trustee shall cease
to be Security Registrar, it shall have the right to examine the Security
Register at all reasonable times.
Upon surrender for registration of transfer of any Registered Security of
any series at any office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series, of any authorized denominations
and of a like aggregate principal amount, bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denomination or denominations and of a like aggregate principal amount,
containing identical terms and provisions, upon surrender of the Registered
Securities to be exchanged at any such office or agency. Whenever any Registered
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless otherwise specified
with respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 303) set forth in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency
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located outside the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such permanent
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depository or such other depository as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and provided further that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
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Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15 days before
selection of the Securities to be redeemed under Section 1103 and ending at the
close of business on (A) if such Securities are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if such Securities are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if such Securities are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except, in the case of any Registered Security to be redeemed in part, the
portion thereof not to be redeemed, or (iii) to exchange any Bearer Security so
selected for redemption except that such a Bearer Security may be exchanged for
a Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption, or (iv)
to issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any agent of either of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms and
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provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; provided, however, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, 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) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section 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 Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset. (a) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, interest, if any,
on any
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Registered Security that 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
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 309, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee inside the
United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest, if any, may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and CEDEL with respect to that
portion of such permanent global Security held for its account by the Common
Depository, for the purpose of permitting each of Euroclear and CEDEL to credit
the interest, if any, received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that 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 registered Holder thereof 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) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) 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
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by
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the Trustee), and at the same time the Company shall deposit with the
Trustee an amount of money in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or 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. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section
301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series
may be reset by the Company on the date or dates specified on the face of
such Security (each an "Optional Reset Date"). The Company may exercise
such option with respect to such Security by notifying the Trustee of such
exercise at least 45 but not more than 60 days prior to an Optional Reset
Date for such Security. Not later than 40
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days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security a
notice (the "Reset Notice") indicating whether the Company has elected to
reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so (i) such new
interest rate (or such new spread or spread multiplier, if applicable) and
(ii) the provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is no such
next Optional Reset Date, to the Stated Maturity of such Security (each
such period a "Subsequent Interest Period"), including the date or dates on
which or the period or periods during which and the price or prices at
which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish a higher interest rate (or a
spread or spread multiplier providing for a higher interest rate, if applicable)
for the Subsequent Interest Period by causing the Trustee to transmit, in the
manner provided for in Section 106, notice of such higher interest rate (or such
spread or spread multiplier providing for a higher interest rate, if applicable)
to the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the interest rate (or the spread or spread multiplier used
to calculate such interest rate, if applicable) is reset on an Optional Reset
Date, and with respect to which the Holders of such Securities have not tendered
such Securities for repayment (or have validly revoked any such tender) pursuant
to the next succeeding paragraph, will bear such higher interest rate (or such
spread or spread multiplier providing for a higher interest rate, if
applicable).
The Holder of any such Security may have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional
Reset Date and except that, if the Holder has tendered any Security for
repayment pursuant to the Reset Notice, the Holder may, by written notice to the
Trustee, revoke such tender or repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Optional Extension of Maturity. The provisions of this Section
308 may be made applicable to any series of Securities pursuant to Section 301
(with such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The Stated Maturity of any Security of such
series may be extended at the option of the Company for the period or periods
specified on the face of such Security (each an "Extension Period") up to but
not beyond the date (the "Final Maturity") set forth on the face of such
Security. The
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Company may exercise such option with respect to any Security by notifying the
Trustee of such exercise at least 45 but not more than 60 days prior to the
Stated Maturity of such Security in effect prior to the exercise of such option
(the "Original Stated Maturity"). If the Company exercises such option, the
Trustee shall transmit, in the manner provided for in Section 106, to the Holder
of such Security not later than 40 days prior to the Original Stated Maturity a
notice (the "Extension Notice") indicating (i) the election of the Company to
extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest
rate (or spread, spread multiplier or other formula to calculate such interest
rate, if applicable), if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate (or spread, spread multiplier or other formula used to calculate
such interest rate, if applicable) provided for in the Extension Notice and
establish a higher interest rate (or spread, spread multiplier or other formula
used to calculate such higher interest rate, if applicable) for the Extension
Period by causing the Trustee to transmit, in the manner provided for in Section
106, notice of such higher interest rate (or spread, spread multiplier or other
formula used to calculate such interest rate, if applicable) to the Holder of
such Security. Such notice shall be irrevocable. All Securities with respect to
which the Stated Maturity is extended will bear such higher interest rate.
If the Company extends the Stated Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Registered Security and for all
other purposes whatsoever, whether or not such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the
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bearer of any Bearer Security and the bearer of any coupon as the absolute owner
of such Security or coupon for the purpose of receiving payment thereof or on
account thereof and for all other purposes whatsoever, whether or not such
Security or coupon be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, 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 any depository, as a Holder, with respect to such
global Security or impair, as between such depository and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depository (or its nominee) as
Holder of such global Security.
SECTION 310. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. Canceled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it.
SECTION 311. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest,
if any, on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of Securities.
(a) Unless otherwise specified with respect to any Securities pursuant to
Section 301, with respect to Registered Securities of any series not permitting
the election provided for in paragraph (b) below or the Holders of which have
not made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as
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provided in paragraph (d) below, payment of the principal of (and premium, if
any) and interest, if any, on any Registered or Bearer Security of such series
will be made in the Currency in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section 312 may
be modified or superseded with respect to any Securities pursuant to Section
301.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of (or premium,
if any) or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee for such series of Registered
Securities (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change of
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fourteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who shall
not have delivered any such election to the Trustee of such series of Registered
Securities not later than the close of business on the applicable Election Date
will be paid the amount due on the applicable payment date in the relevant
Currency as provided in Section 312(a). The Trustee for each such series of
Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, unless otherwise specified pursuant to Section 301, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency or
Currencies amount receivable by
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Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the second Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"Conversion Date"), the Dollar shall be the currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency or, in the case of a currency unit, the Dollar Equivalent of the
Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Exchange Rate Agent and shall be obtained for each subsequent payment date
by converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Exchange Rate Agent and subject to the provisions of paragraph (h) below shall
be the sum of each amount obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms shall have the
following meanings:
(i) A "Component Currency" shall mean any currency which, on the Conversion
Date, was a component currency of the relevant currency unit, including, but not
limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of units
of such Component Currency or fractions thereof which were represented in
the
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relevant currency unit, including, but not limited to, the ECU, on the
Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied
in the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the respective Specified
Amounts of such consolidated Component Currencies expressed in such single
currency, and such amount shall thereafter be a Specified Amount and such
single currency shall thereafter be a Component Currency. If after the
Conversion Date any Component Currency shall be divided into two or more
currencies, the Specified Amount of such Component Currency shall be
replaced by amounts of such two or more currencies, having an aggregate
Dollar Equivalent value at the Market Exchange Rate on the date of such
replacement equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately before
such division, and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not limited
to, the ECU, a Conversion Event (other than any event referred to above in
this definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable
Valuation Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as
the case may be, or such other prior date for any series of Registered
Securities as specified pursuant to clause 13 of Section 301 by which the
written election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts as specified
above shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date. In the event the Company
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so determines that a Conversion Event has occurred with respect to the ECU or
any other currency unit in which Securities are denominated or payable, the
Company will immediately give written notice thereof to the Trustee of the
appropriate series of Securities and to the Exchange Rate Agent (and such
Trustee will promptly thereafter give notice in the manner provided in Section
106 to the affected Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event the
Company determines in good faith that any subsequent change in any Component
Currency as set forth in the definition of Specified Amount above has occurred,
the Company will similarly give written notice to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.
(a) Unless otherwise specified pursuant to Section 301, if and so long as the
Securities of any series (i) are denominated in a Foreign Currency or (ii) may
be payable in a Foreign Currency, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
The Company will cause the Exchange Rate Agent to make the necessary foreign
exchange determinations at the time and in the manner specified pursuant to
Section 301 for the purpose of determining the applicable rate of exchange and,
if applicable, for the purpose of converting the issued Foreign Currency into
the applicable payment Currency for the payment of principal (and premium, if
any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
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SECTION 314. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
indicate the "CUSIP" numbers of the Securities in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption and that reliance
may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall
upon Company Request cease to be of further effect with respect to any series of
Securities specified in such Company Request (except as to any surviving rights
of registration of transfer or exchange of Securities of such series expressly
provided for herein or pursuant hereto and any right to receive Additional
Amounts, as provided in Section 1004), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered
for exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons of such
series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and
coupons of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
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(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in
which the Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities and such coupons
not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the date of
such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of the
last paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any) and interest, if any, for whose payment
such money has been deposited with or received by the Trustee, but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever used herein
with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be occasioned by the provisions of Article Sixteen or be voluntary
or involuntary or be 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):
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(1) default in the payment of any interest upon any Security of that
series or of any coupon appertaining thereto, when such interest or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or agreement of
the Company in this Indenture with respect to any Security of that
series (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors; or
(6) 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,
(B) appoints a Custodian of the Company or for all or substantially
all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days; or
(7) any other Event of Default provided with respect to Securities of that
series.
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The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy
Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)):
(A) all overdue installments of interest, if any, on all
Outstanding Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) all Outstanding
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or
rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the nonpayment of the principal of (or premium, if any) or
interest on Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest on any
Security of any series and any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, with interest upon any overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. 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 any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
any overdue principal, premium or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (or in the
case of Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be provided for in the terms thereof) (and
premium, if any) and interest, if any,
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owing and unpaid in respect of the Securities 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
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons 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 to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, if any, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest, if
any, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the aggregate amounts due and payable on
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such Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company or any
other Person or Persons entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any Security of any series
or any related coupon shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Sections 305 and 307) interest, if any, on such Security or payment
of such coupon on the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or
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has been determined adversely to the Trustee or to such Holder, then and in
every such case the Company, the Trustee and the Holders of Securities and
coupons shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest,
if any, on any Security of such series or any related coupons, or
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(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension 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 wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of 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 SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence of any
Default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the case of a
Default in the payment of the principal of (or premium, if any) or interest, if
any, on any Security of such series, or in the payment of any sinking or
purchase fund installment with respect to the Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any Default
or breach of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(2) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other
than delivery of any
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Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution.
(3) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon a Board Resolution, an
Opinion of Counsel or an Officers' Certificate.
(4) The Trustee may consult with counsel 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.
(5) 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 of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(6) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
(7) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(8) The Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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SECTION 603. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) To pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as has been agreed upon in writing
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust).
(2) Except as otherwise expressly provided herein, to reimburse each of
the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith.
(3) To indemnify each of the Trustee and any predecessor Trustee for, and
to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its own part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, 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.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a claim prior to the Securities upon all
property and funds held or
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collected by the Trustee as such, except funds held in trust for the payment of
principal of (or premium, if any) or interest, if any, on particular Securities
or any coupons.
When the Trustee incurs expenses or renders services after an Event of
Default specified in ss.501(5) or (6) occurs, the expenses and compensation for
the services are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 607. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder which shall be eligible to act as Trustee under TIA
Section 310(a)(1) and shall have a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section
310(b) after written request therefor by the Company or by any Holder
of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA
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Section 315(e), any Holder of a Security who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of a notice of
resignation or the delivery of an Act of removal, the Trustee resigning or being
removed may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(f) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
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such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may
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adopt such authentication and deliver the Securities or coupons so authenticated
with the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, a
copy of which instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and, except as may
otherwise be provided pursuant to Section 301, shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $1,500,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Company. The Trustee for any series of Securities may at any time terminate
the agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
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such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By
------------------------------
as Authenticating Agent
By
------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder of
Securities or coupons, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such May
15 if required by TIA Section 313(a).
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A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee of the listing of the Securities on any stock
exchange.
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company is required to
file the same with the Commission, copies of the annual reports and of
the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Company is
not required to file information, documents or reports pursuant to
either of such Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Calculation of Original Issue Discount. Upon request of the
Trustee, the Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods), if any, accrued on Outstanding
Securities as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not consolidate with or merge with or into any other corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
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(1) either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company
substantially as an entirety shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all the
Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Default or
Event of Default shall have happened and be continuing; and
(3) the Company and the successor Person have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
SECTION 802. Successor Person Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or the successor Person to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
had been named as the Company herein; and in the event of any such conveyance or
transfer, the Company shall be discharged from all obligations and covenants
under this Indenture and the Securities and coupons and may be dissolved and
liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely
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for the benefit of such series) or to surrender any right or power
herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such Events of Default are
to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for
the benefit of such series); provided, however, that in respect of any
such additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such
default or may limit the right of the Holders of a majority in
aggregate principal amount of that or those series of Securities to
which such additional Events of Default apply to waive such default;
or
(4) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; provided that any such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior
to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of Section 801
or otherwise; or
(7) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company);
or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make
any other provisions with respect to matters or questions arising
under this Indenture; provided that
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such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402
and 1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if any,
on) or any installment of principal of or interest on, any Security,
subject to the provisions of Section 309; or reduce the principal
amount thereof or the rate of interest (or change the manner of
calculating the rate of interest) thereon, or any premium payable upon
the redemption thereof, or change any obligation of the Company to pay
Additional Amounts pursuant to Section 1004 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the portion
of the principal of an Original Issue Discount Security or Indexed
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the Currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be), or
adversely affect any right to convert or exchange any Security as may
be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting, or
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(3) modify any of the provisions of this Section, Section 513 or Section
1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the Holders.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities 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 Securities of any other series.
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 indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, 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 Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures. Securities
of any series authenticated and delivered after the execution of any
supplemental indenture
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pursuant to this Article 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 Securities of any
series so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. Effect on Senior Indebtedness. No supplemental indenture shall
adversely affect the rights of any holder of Senior Indebtedness under Article
Sixteen without the consent of such holder.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of such series of Securities, any coupons appertaining thereto
and this Indenture. Any interest due on Bearer Securities on or before Maturity,
other than Additional Amounts, if any, payable as provided in Section 1004 in
respect of principal of (or premium, if any, on) such a Security, shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to Section
301, at the option of the Company, all payments of principal may be paid by
check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Company shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The City
of New York, an office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where Securities of that series
that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented
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or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment; provided, however, that if
the Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange, and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange, where Securities of that series that are convertible
or exchangeable may be surrendered for conversion or exchange, as applicable and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any time the Company shall fail to maintain
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 Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment at the offices specified in the Security, in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are payable in Dollars, payment of principal of (and
premium, if any) and interest, if any, on any Bearer Security shall be made at
the office of the Company's Paying Agent in the Borough of Manhattan, The City
of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for such purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as Places of Payment for each
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series of Securities the office or agency of the Company in the Borough of
Manhattan, The City of New York, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in such city and as its agent to receive
all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, on or before each due date
of the principal of (or premium, if any) or interest, if any, on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the principal (and premium, if any)
and interest, if any, on Securities of such series so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, on or before each due date of the
principal of (or premium, if any) or interest, if any, on any Securities of that
series, deposit with a Paying Agent a sum (in the Currency described in the
preceding paragraph) sufficient to pay the principal (or premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series and remaining unclaimed for two years after
such principal, premium or interest has become due and payable shall be paid to
the Company upon Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment of such
principal, premium or interest on any Security, without interest thereon, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
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required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. Additional Amounts. If the Securities of a series provide for
the payment of Additional Amounts, the Company will pay to the Holder of a
Security of such series or any coupon appertaining thereto Additional Amounts as
may be specified as contemplated by Section 301. Whenever in this Indenture
there is mentioned, in any context, the payment of the principal of (or premium,
if any) or interest, if any, on any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof pursuant to such terms and
express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal premium is made), and at
least 10 days prior to each date of payment of principal, premium or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the Trustee and
the Company's principal Paying Agent or Paying Agents, if other than the
Trustee, with an Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal, premium or interest on
the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities of that series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. In the event that the Trustee or any Paying Agent, as the case
may be, shall not so receive the above-mentioned certificate, then the Trustee
or such Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section or in reliance on the Company's not
furnishing such an Officers' Certificate.
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SECTION 1005. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture. For purposes of this Section
1005, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1006. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition, and as
specified pursuant to Section 301(15) for Securities of any series, in any
covenants of the Company added to Article Ten pursuant to Section 301(14) or
Section 301 (15) in connection with the Securities of a series, if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities, by Act of such Holders, waive
such compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of any series issued on the same day with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any
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integral multiple thereof) of the principal amount of Securities of such series
of a denomination larger than the minimum authorized denomination for Securities
of that series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified by the terms
of such series established pursuant to Section 301, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of
the proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the Redemption
Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive,
without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
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(6) the Place or Places of Payment where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the date fixed for redemption or
the amount of any such missing coupon or coupons will be deducted from
the Redemption Price, unless security or indemnity satisfactory to the
Company, the Trustee for such series and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made, and
(10) The CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, which it may not do in the case
of a sinking fund payment under Article Twelve, segregate and hold in trust as
provided in Section 1003) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay on the
Redemption Date the Redemption Price of, and (unless otherwise specified
pursuant to Section 301) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest, if any) such Securities shall if the
same were interest-bearing cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price,
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together with accrued interest, if any, to the Redemption Date; provided,
however, that installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of coupons for such interest; and provided
further that installments of interest on Registered Securities whose Stated
Maturity is prior to (or, if specified pursuant to Section 301, on) the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Redemption Price shall, until paid, bear interest
from the Redemption Date at the rate of interest set forth in such Security or,
in the case of Original Issue Discount Security, at the Yield to Maturity of
such Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security which is
to be redeemed only in part (pursuant to the provisions of this Article or of
Article Twelve) shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered. However, if less than all the
Securities of any series with differing issue dates, interest rates and stated
maturities are to be redeemed, the Company in its sole discretion shall select
the particular Securities to be redeemed and shall notify the Trustee in writing
thereof at least 45 days prior to the relevant redemption date.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The
Company may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities; provided that such Securities so delivered or
applied as a credit have not been previously so credited. Such Securities shall
be received and credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for Securities of any series, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the
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manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities and (except as otherwise
specified by the terms of such series established pursuant to Section 301) in
accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless
otherwise provided in the terms of such Securities, be repaid at the Repayment
Price thereof, together with interest, if any, thereon accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Company
covenants that on or before the Repayment Date it will deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money in
the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Repayment Price of, and (unless otherwise specified
pursuant to Section 301) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. To be repaid at the option of
the Holder, any Security so providing for such repayment, with the "Option to
Elect Repayment" form on the reverse of such Security duly completed by the
Holder (or by the Holder's attorney duly authorized in writing), must be
received by the Company at the Place of Payment therefor specified in the terms
of such Security (or at such other place or places of which the Company shall
from time to time notify the Holders of such Securities) not earlier than 45
days nor later than 30 days prior to the Repayment Date. If less than the entire
Repayment Price of such Security is to be repaid in accordance with the terms of
such Security, the portion of the Repayment Price of such Security to be repaid,
in increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of such Security surrendered that is not to be repaid,
must be specified. Any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
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SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the Repayment Price of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that installments of interest on
Registered Securities, whose Stated Maturity is prior to (or, if specified
pursuant to Section 301, on) the Repayment Date shall be payable (but without
interest thereon, unless the Company shall default in the payment thereof) to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security surrendered for repayment shall not be so repaid upon
surrender thereof, the Repayment Price shall, until paid, bear interest from the
Repayment Date at the rate of interest set forth in such Security or, in the
case of an Original Issue Discount Security, at the Yield to Maturity of such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any Registered
Security which is to be repaid in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If pursuant to Section 301 provision is made
for either or both of (a) defeasance of the Securities of or within a series
under Section 1402 or (b) covenant defeasance of the Securities of or within a
series under Section 1403, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 301 with respect
to any Securities), shall be applicable to such Securities and any coupons
appertaining thereto, and the Company may at its option by Board Resolution, at
any time, with respect to such Securities and any coupons appertaining thereto,
elect to have Section 1402 (if applicable) or Section 1403 (if applicable) be
applied to such Outstanding Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) of this Section, and to have satisfied all
its other obligations under such Securities and any coupons appertaining thereto
and this Indenture insofar as such Securities and any coupons appertaining
thereto are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Securities and any coupons appertaining
thereto to receive, solely from the trust fund described in Section 1404 and as
more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest, if any, on such Securities and any coupons
appertaining thereto when such payments are due, (B) the Company's obligations
with respect to such Securities under Sections 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1004, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article. Subject to compliance
with this Article Fourteen, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 1403 with
respect to such Securities and any coupons appertaining thereto. Money and
securities held in trust pursuant to this Section 1402 shall not be subject to
Article Sixteen.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of the above
option applicable to this Section with respect to any Securities of or within a
series, the Company shall be released from any obligations under any covenant
specified pursuant to Section 301, with respect to such Outstanding Securities
and any coupons appertaining thereto on
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and after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(4) or 501(7) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 607
who shall agree to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount (in such Currency in which such Securities and any
coupons appertaining thereto are then specified as payable at Stated Maturity),
or (2) Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the Currency in which such
Securities and coupons appertaining thereto are then specified as payable at
Stated Maturity) which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium, if any)
and interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof in an amount, sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any coupons appertaining
thereto on the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons appertaining thereto
on the day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound.
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(c) No Default or Event of Default with respect to such Securities and any
coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 501(5) and 501(6) are concerned, at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 1403, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be), registration is not required
under the Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the trustee for such
trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) Notwithstanding any other provisions of this Section, such defeasance
or covenant defeasance shall be effected in compliance with any additional or
substitute terms, conditions or limitations which may be imposed on the Company
in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either
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directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest, if any, but such
money need not be segregated from other funds except to the extent required by
law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 312(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 1404(a) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any
Security in respect of which the deposit pursuant to Section 1404(a) has been
made, the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or Government Obligations (or other property and any proceeds therefrom) held by
it as provided in Section 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. If Securities of a
series are issuable as Bearer Securities, a meeting of Holders of Securities of
such series may be called at any time and from time to time pursuant to this
Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series.
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SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at such place in the
Borough of Manhattan, The City of New York or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
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Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of that
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series that
vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining
whether such request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by
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Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting, and the meeting may be
held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
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ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Agreement to Subordinate. The Company, for itself, its
successors and assigns, covenants and agrees, and each Holder of Securities by
his acceptance thereof, likewise covenants and agrees, that the payment of the
principal of (and premium, if any) and interest, if any, on each and all of the
Securities is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness.
SECTION 1602. Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities. Upon any distribution of assets of the Company upon
any dissolution, winding up, liquidation or reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or receivership proceedings or
upon an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise (subject to the power of a
court of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the holders thereof by a lawful plan
of reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled to receive
payment in full of the principal thereof (and premium, if any) and interest due
thereon before the Holders of the Securities are entitled to receive any payment
upon the principal (or premium, if any) or interest, if any, on indebtedness
evidenced by the Securities; and
(b) Any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article Sixteen shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if any)
and interest on the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or the Holders of the
Securities before all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over, upon written notice to the Trustee, to the
holder of such Senior Indebtedness or their representative or representatives or
to the trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Indebtedness may have been issued, ratably as
aforesaid, for application to payment of all Senior
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Indebtedness remaining unpaid until all such Senior Indebtedness shall have been
paid in full, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest, if any, on the Securities shall be paid
in full and no such payments or distributions to the Holders of the Securities
of cash, property or securities otherwise distributable to the holders of Senior
Indebtedness shall, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Securities be deemed to be a
payment by the Company to or on account of the Securities. It is understood that
the provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the
one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing
contained in this Article Sixteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest, if any, on the Securities as and when the same shall become due
and payable in accordance with their terms, or to affect the relative rights of
the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Sixteen of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Sixteen, the Trustee, subject to the
provisions of Section 601, shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other person making any distribution 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
Sixteen.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. The Trustee shall not be liable to any such
holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company moneys or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Sixteen.
If the Trustee or any Holder of Securities does not file a proper claim or
proof of debt in the form required in any proceeding referred to above prior to
30 days before the expiration of the time to file such claim in such proceeding,
then the holder of any Senior Indebtedness is hereby authorized, and has the
right, to file an appropriate claim or claims for or on behalf of such Holder of
Securities.
SECTION 1603. No Payment on Securities in Event of Default on Senior
Indebtedness. No payment by the Company on account of principal (or premium, if
any),
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sinking funds or interest, if any, on the Securities shall be made unless full
payment of amounts then due for principal (premium, if any), sinking funds and
interest on Senior Indebtedness has been made or duly provided for in money or
money's worth.
SECTION 1604. Payments on Securities Permitted. Nothing contained in this
Indenture or in any of the Securities shall (a) affect the obligation of the
Company to make, or prevent the Company from making, at any time except as
provided in Sections 1602 and 1603, payments of principal of (or premium, if
any) or interest, if any, on the Securities or (b) prevent the application by
the Trustee of any moneys deposited with it hereunder to the payment of or on
account of the principal of (or premium, if any) or interest, if any, on the
Securities, unless the Trustee shall have received at its Corporate Trust Office
written notice of any event prohibiting the making of such payment more than two
Business Days prior to the date fixed for such payment.
SECTION 1605. Authorization of Holders to Trustee to Effect Subordination.
Each Holder of Securities by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Sixteen and appoints
the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1606. Notices to Trustee. Notwithstanding the provisions of this
Article or any other provisions of this Indenture, neither the Trustee nor any
Paying Agent (other than the Company) shall be charged with knowledge of the
existence of any Senior Indebtedness or of any event which would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received (in the
case of the Trustee, at its Corporate Trust Office) written notice thereof from
the Company or from the holder of any Senior Indebtedness or from the trustee
for any such holder, together with proof satisfactory to the Trustee of such
holding of Senior Indebtedness or of the authority of such trustee; provided,
however, that if at least two Business Days prior to the date upon which by the
terms hereof any such moneys may become payable for any purpose (including,
without limitation, the payment of either the principal (or premium, if any) or
interest, if any, on any Security) the Trustee shall not have received with
respect to such moneys the notice provided for in this Section 1606, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such moneys and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary, which may be received by it within two Business Days
prior to such date. The Trustee shall be entitled to rely on the delivery to it
of a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such a
notice has been given by a holder of Senior Indebtedness or a trustee on behalf
of any such holder. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Sixteen, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article Sixteen
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and, if such evidence is not furnished, the Trustee may defer any payment to
such Person pending judicial determination as to the right of such Person to
receive such payment.
SECTION 1607. Trustee as Holder of Senior Indebtedness. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article Sixteen in respect of any Senior Indebtedness at any time held by it to
the same extent as any other holder of Senior Indebtedness and nothing in
Section 613 or elsewhere in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
Nothing in this Article Sixteen shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 606.
SECTION 1608. Modifications of Terms of Senior Indebtedness. Any renewal or
extension of the time of payment of any Senior Indebtedness or the exercise by
the holders of Senior Indebtedness of any of their rights under any instrument
creating or evidencing Senior Indebtedness, including, without limitation, the
waiver of default thereunder, may be made or done all without notice to or
assent from the Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal or
other change of, or waiver, consent or other action in respect of, any liability
or obligation under or in respect of, or of any of the terms, covenants or
conditions of any indenture or other instrument under which any Senior
Indebtedness is outstanding or of such Senior Indebtedness, whether or not such
release is in accordance with the provisions of any applicable document, shall
in any way alter or affect any of the provisions of this Article Sixteen or of
the Securities relating to the subordination thereof.
SECTION 1609. Reliance on Judicial Order or Certificate of Liquidating
Agent Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen. The Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the persons entitled to
participate in such payment or 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 Sixteen.
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* * * * *
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
By
--------------------------------------
[SEAL] Vice President and Treasurer
Attest:
- ---------------------
[Assistant Secretary]
FIRST UNION NATIONAL BANK,
as Trustee
By
--------------------------------------
Vice President
[SEAL]
Attest:
- ---------------------
[Assistant Secretary]
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STATE OF NEW JERSEY )
) ss:
COUNTY OF ESSEX )
On the __________________ day of _____, 1998, before me personally came
Morton A. Plawner to me known, who, being by me duly sworn, did depose and say
that he resides at ___________, New Jersey _____; that he is Vice President and
Treasurer of Public Service Enterprise Group Incorporated, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
[Notarial Seal]
---------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF NEW JERSEY )
) ss:
COUNTY OF ESSEX )
On the __________________ day of _______, 1998, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he resides at _______________; that he is a ______________ of First Union
National Bank, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
[Notarial Seal]
---------------------------------
Notary Public
COMMISSION EXPIRES
<PAGE>
A-2
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities
to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Public Service Enterprise Group Incorporated or its agent
that such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
A-1
<PAGE>
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]______ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
--------------- --
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
---------------------------------------
(Authorized Signatory)
Name:
Title:
A-2
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL BANK IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities
to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise John Deere Capital
Corporation or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our
A-2-1
<PAGE>
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
--------------- --
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the
Euroclear System
[Cedel Bank]
By
---------------------------------
A-2-2
PSEG [LOGO]
May 14, 1998
Public Service Enterprise Group Incorporated
80 Park Plaza
P.O. Box 1171
Newark, NJ 07101
Re: $500,000,000 aggregate principal amount of Senior Debt
Securities, Subordinated Debt Securities (the "Debt Securities")
to be issued in one or more series by Public Service Enterprise
Group Incorporated (the "Company"); Trust Preferred Securities
(the "Preferred Securities") (the Debt Securities and the
Preferred Securities being collectively, the "Securities") to be
issued in one or more series by Enterprise Capital Trust II and
Enterprise Capital Trust III (the "Trusts"); and Guarantees with
respect to the Preferred Securities (the "Guarantees") and
Deferrable Interest Subordinated Debentures (the "Subordinated
Debentures") to be issued in one or more series by the Company.
Ladies and Gentlemen:
I am Associate General Counsel of the Company and, in that capacity, I have
represented the Company in connection with the proposed issuance, from time to
time, by the Company of the Debt Securities and by the Trusts of the Preferred
Securities and the execution and delivery by the Company of the Guarantees and
the Subordinated Debentures related thereto. The Securities have an aggregate
issue price not to exceed $500,000,000. The Debt Securities and the Subordinated
Debentures will be issued under certain indentures (each, as supplemented from
time to time, an "Indenture") between the Company and First Union National Bank
as Trustee. All capitalized terms used herein unless defined herein shall have
the meanings specified in the Registration Statement hereinafter described.
I and/or attorneys working under my supervision have conducted such
investigations of laws and regulations as I have deemed necessary or appropriate
for the purpose of rendering the opinions hereinafter expressed.
The opinions expressed below are based on the following assumptions:
Public Service Enterprise Group Incorporated
80 Park Plaza, Newark, New Jersey 07101-1171/Mailing Address: 80 Park Plaza,
P.O. 1171, Newark, New Jersey 07101-1171 (201)430-6131 (201)430-5983 - Fax
<PAGE>
2
(a) Each of the Trusts have been duly created and are validly existing
under the laws of the State of Delaware;
(b) The combined Registration Statement on Form S-3 and Post-Effective
Amendment No. 1 to Registration Statement No. 333-43241 (the "Registration
Statement") filed by the Company and the Trusts with respect to the Securities
will become effective;
(c) The proposed transactions contemplated by the Registration Statement
will be carried out on the basis set forth therein and in conformity with the
authorizations, approvals, consents or exemptions under the securities laws of
various states and other jurisdictions of the United States;
(d) Prior to the issuance of any series of Debt Securities, an Indenture
relating thereto will have been executed and delivered by the Company, and the
Board of Directors of the Company, a committee thereof or the Sale and Pricing
Committee of the Company ("Committee"), pursuant to delegated authority from
such Board, will have authorized the issuance of, and established the terms of
such series of Debt Securities.
(e) Prior to the issuance by a Trust of any series of Preferred Securities,
together with the issuance by the Company of related Guarantees and Subordinated
Debentures:
(i) the depositor of the Trust will authorize the issuance of, and
determine the terms of such series of Preferred Securities;
(ii) an Indenture will have been executed and delivered by the
Company, and the Board of Directors of the Company, a committee thereof or
the Committee, pursuant to delegated authority from such Board, will have
authorized the issuance of, and established the terms of the series of the
Subordinated Debentures related to such series of Preferred Securities; and
(iii) the Guarantee related to such series of Preferred Securities
will have been executed and delivered by the Company in accordance with
appropriate resolutions of the Board of Directors of the Company, a
committee thereof or the Committee pursuant to such delegated authority.
(f) Each Indenture and applicable Guarantee will have been qualified in
accordance with the provisions of the Trust Indenture Act of 1939, as amended.
<PAGE>
3
Based upon the foregoing and subject to the limitations herein, I am of the
opinion that:
1. The Company is a corporation duly organized and validly existing and
authorized to exercise its corporate powers, rights and privileges under the
laws of the State of New Jersey.
2. When properly executed, authenticated and delivered as provided in the
respective Indenture, the Debt Securities and the Subordinated Debentures, as
the case may be, will be legally issued, valid and binding obligations of the
Company.
3. When properly executed and delivered by the Company, any Guarantee
issued in connection with the issuance of a series Preferred Securities will be
a valid and binding obligation of the Company.
I express no opinions as to matters of law in jurisdictions other then the
State of New Jersey. My opinions are rendered only with respect to the laws of
the State of New Jersey which are currently in effect.
This opinion does not cover the necessity of filings under the provisions
of securities laws of any state in which the Debt Securities or the Preferred
Securities may be sold.
The opinions set forth above are subject, as to enforcement, to (i)
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws relating
to or affecting the enforcement of creditors' rights generally, (ii) general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (iii) provisions of law that require that a
judgment for money damages rendered by a court in the United States be expressed
only in United States dollars.
I hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement and to the references to me under the heading "Legal
Matters" in the Prospectuses contained therein.
Very truly yours,
/s/ James T. Foran
James T. Foran
General Corporate Counsel
[Letterhead of Richards, Layton & Finger]
May 14, 1998
Enterprise Capital Trust II
c/o Public Service Enterprise Group Incorporated
80 Park Plaza
Newark, New Jersey 07101
Re: Enterprise Capital Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Public Service Enterprise
Group Incorporated, a New Jersey corporation (the "Company"), and Enterprise
Capital Trust II, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated as of December 22, 1997
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on December 22, 1997;
(b) The Trust Agreement of the Trust, dated as of December 22, 1997, among
the Company, as Depositor, and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form S-3,
including a preliminary prospectus (the "Prospectus"), relating to the __% Trust
Preferred Securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the Securities and
Exchange Commission on or about May 11, 1998;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the
<PAGE>
Enterprise Capital Trust II
May 14, 1998
Page 2
holders, from time to time, of undivided beneficial interests in the assets of
the Trust (including Exhibits A, C and D thereto) (the "Trust Agreement"),
attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated May 11, 1998,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (e) above, in particular, we have
not reviewed any document (other than the documents listed in paragraphs (a)
through (e) above) that is referred to in or incorporated by reference into the
documents reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust Agreement
and the Certificate are in fill force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate for such Preferred
Security and the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
<PAGE>
Enterprise Capital Trust II
May 14, 1998
Page 3
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good standing
as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust, will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/BJ
[Letterhead of Richards, Layton & Finger]
May 14, 1998
Enterprise Capital Trust III
c/o Public Service Enterprise Group Incorporated
80 Park Plaza
Newark, New Jersey 07101
Re: Enterprise Capital Trust III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Public Service Enterprise
Group Incorporated, a New Jersey corporation (the "Company"), and Enterprise
Capital Trust III, a Delaware business trust (the "Trust"), in connection with
the matters set forth herein. At your request, this opinion is being furnished
to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated as of December 22, 1997
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on December 22, 1997;
(b) The Trust Agreement of the Trust, dated as of December 22, 1997, among
the Company, as Depositor, and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement") on Form S-3,
including a preliminary prospectus (the "Prospectus"), relating to the __% Trust
Preferred Securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and set forth therein with the Securities and Exchange
Commission on or about May 11, 1998;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the
<PAGE>
Enterprise Capital Trust III
May 14, 1998
Page 2
holders, from time to time, of undivided beneficial interests in the assets of
the Trust (including Exhibits A, C and D thereto) (the "Trust Agreement"),
attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated May 11, 1998,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other than
the documents listed in paragraphs (a) through (e) above. In particular, we have
not reviewed any document (other than the documents listed in paragraphs (a)
through (e) above) that is referred to in or incorporated by reference into the
documents reviewed by us. We have assumed that there exists no provision in any
document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust Agreement
and the Certificate are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate for such Preferred
Security and the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
<PAGE>
Enterprise Capital Trust III
May 14, 1998
Page 3
This opinion is limited to the laws of the State of Delaware (excluding the
securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of law
and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good standing
as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust, will
be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement,
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/BJ
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
May 14, 1998
Public Service Enterprise Group Incorporated
80 Park Plaza
Newark, NJ 07101
Ladies and Gentlemen:
We have acted as special counsel to you (the "Company") in connection with
the registration of Trust Preferred Securities to be issued by Enterprise
Capital Trust II and Enterprise Capital Trust III, and the registration of the
related Guarantee Agreement and Deferrable Interest Subordinated Debentures of
the Company and hereby confirm to you our opinion as set forth under the heading
"United States Taxation" in the Prospectus included in the Registration
Statement filed on Form S-3.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to this firm under the heading "United States
Taxation" in the Prospectus included in the Registration Statement.
Very truly yours,
/s/ BALLARD SPAHR ANDREWS & INGERSOLL, LLP
[Letterhead of Deloitte & Touche LLP]
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Public Service Enterprise Group Incorporated, Enterprise Capital Trust II and
Enterprise Capital Trust III on Form S-3 of our report dated February 13, 1998
appearing in the 1997 Annual Report on Form 10-K of Public Service Enterprise
Group Incorporated and to the reference to us under the heading "Experts" in the
Prospectuses, which are part of this Registration Statement.
/s/ Deloitte & Touche LLP
Parsippany, New Jersey
May 14, 1998
POWER OF ATTORNEY
Each Director of Public Service Enterprise Group Incorporated whose
signature appears below hereby appoints Robert C. Murray the agent for service
named in this Registration Statement, and James T. Foran, Esq. as
attorney-in-fact, to execute in the name of each such person and to file with
the Securities and Exchange Commission this Registration Statement and any and
all additional amendments, including post-effective amendments to this
Registration Statement.
Signature Title Date
--------- ----- ----
/s/
- ------------------------------- Director May 5, 1998
Lawrence R. Codey
/s/
- ------------------------------- Director May 5, 1998
Ernest H. Drew
/s/
- ------------------------------- Director May 5, 1998
T.J. Dermot Dunphy
/s/
- ------------------------------- Director May 5, 1998
E. James Ferland
/s/
- ------------------------------- Director May 5, 1998
Raymond V. Gilmartin
/s/
- ------------------------------- Director May 5, 1998
Conrad K. Harper
/s/
- ------------------------------- Director May 5, 1998
Irwin Lerner
/s/
- ------------------------------- Director May 5, 1998
Marilyn M. Pfaltz
/s/
- ------------------------------- Director May 5, 1998
Forrest J. Remick, Jr.
/s/
- ------------------------------- Director May 5, 1998
Richard J. Swift
/s/
- ------------------------------- Director May 5, 1998
Josh S. Weston
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS A TRUSTEE
----------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_
----------
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 South College Street, Charlotte, North Carolina 28288-0630
(Address of Principal Executive Offices) (Zip code)
----------
(Name, address and telephone number of agent for service)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(Name of Obligor)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer
Identification No.)
80 Park Plaza, Newark, New Jersey 07101
(Address of Principal Executive Offices) (Zip Code)
----------
Senior Debt Securities
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Richmond, VA 23219
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities of
the trustee:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Item 4. Trusteeships under Other Indentures:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not Applicable
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Not Applicable
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for the obligations in default by
the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Whether the Amount owned beneficially Percentage of class
securities are or held as collateral represented by
voting or Security for obligations amount given in
nonvoting in default by Trustee Col. C.
Title of Class Securities
- --------------------------------------------------------------------------------
Not Applicable
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
issuer and Amount security for obligations amount given in
title of class outstanding in default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
2
<PAGE>
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
or held as collateral represented by
Name of security for obligations in amount given in
Issuer and Amount default by Trustee Col. C
title of class outstanding
- --------------------------------------------------------------------------------
Not Applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
Issuer and Amount security for obligations in amount given in
title of class outstanding default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. D.
- --------------------------------------------------------------------------------
Nature of indebtedness Amount outstanding Date due
- --------------------------------------------------------------------------------
Not Applicable
3
<PAGE>
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not Applicable
Item 16. Lists of Exhibits.
Listed below are all exhibits filed as part of this statement of eligibility.
1* -Copy of Articles of Association of the Trustee as now in effect.
2 -No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
3* -Copy of the authorization of the Trustee to exercise corporate trust
powers.
4* -Copy of the existing By-Laws of the Trustee, as now in effect.
5 -Not applicable.
6 -The consent of the Trustee required by Section 321(b) of the Act.
7 -A copy of the latest report of Condition of the Trustee published
pursuant to the law or the requirements of its supervising or
examining authority.
8 -Not Applicable
9 -Not Applicable
- ----------
*Exhibits thus designated have heretofore been filed with the Securities and
Exchange Commission, have not been amended since filing and are incorporated
herein by reference (see Exhibit T-1 Registration Number 333-47985).
In answering any item in this statement of eligibility and qualification
which relates to matters peculiarly within the knowledge of the obligor or of
its directors or officers, or an underwriter for the obligor, the undersigned,
First Union National Bank, has relied upon information furnished to it by the
obligor or such underwriter.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Newark, and State of New Jersey, on the 30th day
of April, 1998.
First Union National Bank
(Trustee)
(CORPORATE SEAL)
By: /s/ Frank Gallagher
------------------------------
Vice President
5
<PAGE>
Exhibit T-6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, and in connection with the proposed issue of Public Service Enterprise
Group, Incorporated, we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Frank Gallagher
------------------------------
Vice President
Newark, NJ
April 30, 1998
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association, at the close of business on September 30, 1997, published
in response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161.
Charter Number 33869 Comptroller of the Currency Northeastern District.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ............. 1,725,148
Interest-bearing balances ...................................... 4,216,934
Securities /////////
Hold-to-maturity securities .................................... 337,471
Available-for-sale securities .................................. 3,949,655
Federal funds sold and securities purchased under agreements
to resell ...................................................... 51,999
Loans and lease financing receivables:
Loan and leases, net of unearned income ..... 15,757,193
LESS: Allowance for loan and lease losses ... 196,929
LESS: Allocated transfer risk reserve ....... 0
Loans and leases, net of unearned income, allowance, and
reserve .................................................. 15,560,264
Assets held in trading accounts ................................... 0
Premises and fixed assets (including capitalized leases) .......... 418,837
Other real estate owned ........................................... 36,598
Investment in unconsolidated subsidiaries and associated /////////
companies ...................................................... 37,868
Customer's liability to this bank on acceptances outstanding ...... 91,787
Intangible assets ................................................. 382,749
Other assets ...................................................... 1,043,467
Total assets ...................................................... 27,852,777
LIABILITIES
Deposits:
In domestic offices ...................................... 20,810,085
Noninterest-bearing ........................ 3,480,114
Interest-bearing ........................... 17,329,971
In foreign offices, Edge and Agreement subsidiaries,
and IBFs ................................................. 736,612
Noninterest-bearing ........................ 136
Interest-bearing ........................... 736,476
Federal funds purchased and securities sold under agreements
to repurchase .................................................. 2,581,021
Demand notes issued to the U.S. Treasury .......................... 64,236
Trading liabilities ............................................... 0
Other borrowed money: /////////
With original maturity of one year or less ............... 0
With original maturity of more than one year ............. 7,510
Mortgage indebtedness and obligations under capitalized leases .... 5,777
Bank's liability on acceptances executed and outstanding .......... 93,594
Subordinated notes and debentures ................................. 450,000
Other liabilities ................................................. 812,999
Total liabilities ................................................. 25,561,834
Limited-life preferred stock and related surplus .................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 160,540
Common Stock ...................................................... 452,156
Surplus ........................................................... 1,303,224
Undivided profits and capital reserves ............................ 342,689
Net unrealized holding gains (losses) on available-for-sale /////////
securities ..................................................... 32,334
Cumulative foreign currency translation adjustments ............... 0
Total equity capital .............................................. 2,290,943
Total liabilities, limited-life preferred stock and equity /////////
capital ........................................................ 27,852,777
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS A TRUSTEE
----------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_
----------
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 South College Street, Charlotte, North Carolina 28288-0630
(Address of Principal Executive Offices) (Zip code)
----------
(Name, address and telephone number of agent for service)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(Name of Obligor)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer
Identification No.)
80 Park Plaza, Newark, New Jersey 07101
(Address of Principal Executive Offices) (Zip Code)
----------
Subordinated Debt Securities
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Richmond, VA 23219
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities of
the trustee:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Item 4. Trusteeships under Other Indentures:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not Applicable
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Not Applicable
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for the obligations in default by
the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Whether the Amount owned beneficially Percentage of class
securities are or held as collateral represented by
voting or Security for obligations amount given in
nonvoting in default by Trustee Col. C.
Title of Class Securities
- --------------------------------------------------------------------------------
Not Applicable
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
issuer and Amount security for obligations amount given in
title of class outstanding in default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
2
<PAGE>
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
or held as collateral represented by
Name of security for obligations in amount given in
Issuer and Amount default by Trustee Col. C
title of class outstanding
- --------------------------------------------------------------------------------
Not Applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
Issuer and Amount security for obligations in amount given in
title of class outstanding default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. D.
- --------------------------------------------------------------------------------
Nature of indebtedness Amount outstanding Date due
- --------------------------------------------------------------------------------
Not Applicable
3
<PAGE>
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not Applicable
Item 16. Lists of Exhibits.
Listed below are all exhibits filed as part of this statement of eligibility.
1* -Copy of Articles of Association of the Trustee as now in effect.
2 -No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
3* -Copy of the authorization of the Trustee to exercise corporate trust
powers.
4* -Copy of the existing By-Laws of the Trustee, as now in effect.
5 -Not applicable.
6 -The consent of the Trustee required by Section 321(b) of the Act.
7 -A copy of the latest report of Condition of the Trustee published
pursuant to the law or the requirements of its supervising or
examining authority.
8 -Not Applicable
9 -Not Applicable
- ----------
*Exhibits thus designated have heretofore been filed with the Securities and
Exchange Commission, have not been amended since filing and are incorporated
herein by reference (see Exhibit T-1 Registration Number 333-47985).
In answering any item in this statement of eligibility and qualification
which relates to matters peculiarly within the knowledge of the obligor or of
its directors or officers, or an underwriter for the obligor, the undersigned,
First Union National Bank, has relied upon information furnished to it by the
obligor or such underwriter.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Newark, and State of New Jersey, on the 30th day
of April, 1998.
First Union National Bank
(Trustee)
(CORPORATE SEAL)
By: /s/ Frank Gallagher
------------------------------
Vice President
5
<PAGE>
Exhibit T-6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, and in connection with the proposed issue of Public Service Enterprise
Group, Incorporated, we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Frank Gallagher
------------------------------
Vice President
Newark, NJ
April 30, 1998
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association, at the close of business on September 30, 1997, published
in response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161.
Charter Number 33869 Comptroller of the Currency Northeastern District.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ............. 1,725,148
Interest-bearing balances ...................................... 4,216,934
Securities /////////
Hold-to-maturity securities .................................... 337,471
Available-for-sale securities .................................. 3,949,655
Federal funds sold and securities purchased under agreements
to resell ...................................................... 51,999
Loans and lease financing receivables:
Loan and leases, net of unearned income ..... 15,757,193
LESS: Allowance for loan and lease losses ... 196,929
LESS: Allocated transfer risk reserve ....... 0
Loans and leases, net of unearned income, allowance, and
reserve .................................................. 15,560,264
Assets held in trading accounts ................................... 0
Premises and fixed assets (including capitalized leases) .......... 418,837
Other real estate owned ........................................... 36,598
Investment in unconsolidated subsidiaries and associated /////////
companies ...................................................... 37,868
Customer's liability to this bank on acceptances outstanding ...... 91,787
Intangible assets ................................................. 382,749
Other assets ...................................................... 1,043,467
Total assets ...................................................... 27,852,777
LIABILITIES
Deposits:
In domestic offices ...................................... 20,810,085
Noninterest-bearing ........................ 3,480,114
Interest-bearing ........................... 17,329,971
In foreign offices, Edge and Agreement subsidiaries,
and IBFs ................................................. 736,612
Noninterest-bearing ........................ 136
Interest-bearing ........................... 736,476
Federal funds purchased and securities sold under agreements
to repurchase .................................................. 2,581,021
Demand notes issued to the U.S. Treasury .......................... 64,236
Trading liabilities ............................................... 0
Other borrowed money: /////////
With original maturity of one year or less ............... 0
With original maturity of more than one year ............. 7,510
Mortgage indebtedness and obligations under capitalized leases .... 5,777
Bank's liability on acceptances executed and outstanding .......... 93,594
Subordinated notes and debentures ................................. 450,000
Other liabilities ................................................. 812,999
Total liabilities ................................................. 25,561,834
Limited-life preferred stock and related surplus .................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 160,540
Common Stock ...................................................... 452,156
Surplus ........................................................... 1,303,224
Undivided profits and capital reserves ............................ 342,689
Net unrealized holding gains (losses) on available-for-sale /////////
securities ..................................................... 32,334
Cumulative foreign currency translation adjustments ............... 0
Total equity capital .............................................. 2,290,943
Total liabilities, limited-life preferred stock and equity /////////
capital ........................................................ 27,852,777
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS A TRUSTEE
----------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_
----------
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 South College Street, Charlotte, North Carolina 28288-0630
(Address of Principal Executive Offices) (Zip code)
----------
(Name, address and telephone number of agent for service)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(Name of Obligor)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer
Identification No.)
80 Park Plaza, Newark, New Jersey 07101
(Address of Principal Executive Offices) (Zip Code)
----------
DEFERRABLE INTEREST SUBORDINATED DEBENTURES
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Richmond, VA 23219
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities of
the trustee:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Item 4. Trusteeships under Other Indentures:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not Applicable
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Not Applicable
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for the obligations in default by
the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Whether the Amount owned beneficially Percentage of class
securities are or held as collateral represented by
voting or Security for obligations amount given in
nonvoting in default by Trustee Col. C.
Title of Class Securities
- --------------------------------------------------------------------------------
Not Applicable
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
issuer and Amount security for obligations amount given in
title of class outstanding in default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
2
<PAGE>
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
or held as collateral represented by
Name of security for obligations in amount given in
Issuer and Amount default by Trustee Col. C
title of class outstanding
- --------------------------------------------------------------------------------
Not Applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
Issuer and Amount security for obligations in amount given in
title of class outstanding default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. D.
- --------------------------------------------------------------------------------
Nature of indebtedness Amount outstanding Date due
- --------------------------------------------------------------------------------
Not Applicable
3
<PAGE>
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not Applicable
Item 16. Lists of Exhibits.
Listed below are all exhibits filed as part of this statement of eligibility.
1* -Copy of Articles of Association of the Trustee as now in effect.
2 -No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
3* -Copy of the authorization of the Trustee to exercise corporate trust
powers.
4* -Copy of the existing By-Laws of the Trustee, as now in effect.
5 -Not applicable.
6 -The consent of the Trustee required by Section 321(b) of the Act.
7 -A copy of the latest report of Condition of the Trustee published
pursuant to the law or the requirements of its supervising or
examining authority.
8 -Not Applicable
9 -Not Applicable
- ----------
*Exhibits thus designated have heretofore been filed with the Securities and
Exchange Commission, have not been amended since filing and are incorporated
herein by reference (see Exhibit T-1 Registration Number 333-47985).
In answering any item in this statement of eligibility and qualification
which relates to matters peculiarly within the knowledge of the obligor or of
its directors or officers, or an underwriter for the obligor, the undersigned,
First Union National Bank, has relied upon information furnished to it by the
obligor or such underwriter.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Newark, and State of New Jersey, on the 30th day
of April, 1998.
First Union National Bank
(Trustee)
(CORPORATE SEAL)
By: /s/ Frank Gallagher
------------------------------
Vice President
5
<PAGE>
Exhibit T-6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, and in connection with the proposed issue of Public Service Enterprise
Group, Incorporated, we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Frank Gallagher
------------------------------
Vice President
Newark, NJ
April 30, 1998
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association, at the close of business on September 30, 1997, published
in response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161.
Charter Number 33869 Comptroller of the Currency Northeastern District.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ............. 1,725,148
Interest-bearing balances ...................................... 4,216,934
Securities /////////
Hold-to-maturity securities .................................... 337,471
Available-for-sale securities .................................. 3,949,655
Federal funds sold and securities purchased under agreements
to resell ...................................................... 51,999
Loans and lease financing receivables:
Loan and leases, net of unearned income ..... 15,757,193
LESS: Allowance for loan and lease losses ... 196,929
LESS: Allocated transfer risk reserve ....... 0
Loans and leases, net of unearned income, allowance, and
reserve .................................................. 15,560,264
Assets held in trading accounts ................................... 0
Premises and fixed assets (including capitalized leases) .......... 418,837
Other real estate owned ........................................... 36,598
Investment in unconsolidated subsidiaries and associated /////////
companies ...................................................... 37,868
Customer's liability to this bank on acceptances outstanding ...... 91,787
Intangible assets ................................................. 382,749
Other assets ...................................................... 1,043,467
Total assets ...................................................... 27,852,777
LIABILITIES
Deposits:
In domestic offices ...................................... 20,810,085
Noninterest-bearing ........................ 3,480,114
Interest-bearing ........................... 17,329,971
In foreign offices, Edge and Agreement subsidiaries,
and IBFs ................................................. 736,612
Noninterest-bearing ........................ 136
Interest-bearing ........................... 736,476
Federal funds purchased and securities sold under agreements
to repurchase .................................................. 2,581,021
Demand notes issued to the U.S. Treasury .......................... 64,236
Trading liabilities ............................................... 0
Other borrowed money: /////////
With original maturity of one year or less ............... 0
With original maturity of more than one year ............. 7,510
Mortgage indebtedness and obligations under capitalized leases .... 5,777
Bank's liability on acceptances executed and outstanding .......... 93,594
Subordinated notes and debentures ................................. 450,000
Other liabilities ................................................. 812,999
Total liabilities ................................................. 25,561,834
Limited-life preferred stock and related surplus .................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 160,540
Common Stock ...................................................... 452,156
Surplus ........................................................... 1,303,224
Undivided profits and capital reserves ............................ 342,689
Net unrealized holding gains (losses) on available-for-sale /////////
securities ..................................................... 32,334
Cumulative foreign currency translation adjustments ............... 0
Total equity capital .............................................. 2,290,943
Total liabilities, limited-life preferred stock and equity /////////
capital ........................................................ 27,852,777
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS A TRUSTEE
----------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_
----------
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 South College Street, Charlotte, North Carolina 28288-0630
(Address of Principal Executive Offices) (Zip code)
----------
(Name, address and telephone number of agent for service)
ENTERPRISE CAPITAL TRUST II
(Name of Obligor)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer
Identification No.)
80 Park Plaza, Newark, New Jersey 07101
(Address of Principal Executive Offices) (Zip Code)
----------
__________% TRUST PREFERRED SECURITIES
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Richmond, VA 23219
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities of
the trustee:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Item 4. Trusteeships under Other Indentures:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not Applicable
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Not Applicable
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for the obligations in default by
the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Whether the Amount owned beneficially Percentage of class
securities are or held as collateral represented by
voting or Security for obligations amount given in
nonvoting in default by Trustee Col. C.
Title of Class Securities
- --------------------------------------------------------------------------------
Not Applicable
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
issuer and Amount security for obligations amount given in
title of class outstanding in default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
2
<PAGE>
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
or held as collateral represented by
Name of security for obligations in amount given in
Issuer and Amount default by Trustee Col. C
title of class outstanding
- --------------------------------------------------------------------------------
Not Applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
Issuer and Amount security for obligations in amount given in
title of class outstanding default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. D.
- --------------------------------------------------------------------------------
Nature of indebtedness Amount outstanding Date due
- --------------------------------------------------------------------------------
Not Applicable
3
<PAGE>
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not Applicable
Item 16. Lists of Exhibits.
Listed below are all exhibits filed as part of this statement of eligibility.
1* -Copy of Articles of Association of the Trustee as now in effect.
2 -No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
3* -Copy of the authorization of the Trustee to exercise corporate trust
powers.
4* -Copy of the existing By-Laws of the Trustee, as now in effect.
5 -Not applicable.
6 -The consent of the Trustee required by Section 321(b) of the Act.
7 -A copy of the latest report of Condition of the Trustee published
pursuant to the law or the requirements of its supervising or
examining authority.
8 -Not Applicable
9 -Not Applicable
- ----------
*Exhibits thus designated have heretofore been filed with the Securities and
Exchange Commission, have not been amended since filing and are incorporated
herein by reference (see Exhibit T-1 Registration Number 333-47985).
In answering any item in this statement of eligibility and qualification
which relates to matters peculiarly within the knowledge of the obligor or of
its directors or officers, or an underwriter for the obligor, the undersigned,
First Union National Bank, has relied upon information furnished to it by the
obligor or such underwriter.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Newark, and State of New Jersey, on the 30th day
of April, 1998.
First Union National Bank
(Trustee)
(CORPORATE SEAL)
By: /s/ Frank Gallagher
------------------------------
Vice President
5
<PAGE>
Exhibit T-6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, and in connection with the proposed issue of Public Service Enterprise
Group, Incorporated, we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Frank Gallagher
------------------------------
Vice President
Newark, NJ
April 30, 1998
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association, at the close of business on September 30, 1997, published
in response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161.
Charter Number 33869 Comptroller of the Currency Northeastern District.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ............. 1,725,148
Interest-bearing balances ...................................... 4,216,934
Securities /////////
Hold-to-maturity securities .................................... 337,471
Available-for-sale securities .................................. 3,949,655
Federal funds sold and securities purchased under agreements
to resell ...................................................... 51,999
Loans and lease financing receivables:
Loan and leases, net of unearned income ..... 15,757,193
LESS: Allowance for loan and lease losses ... 196,929
LESS: Allocated transfer risk reserve ....... 0
Loans and leases, net of unearned income, allowance, and
reserve .................................................. 15,560,264
Assets held in trading accounts ................................... 0
Premises and fixed assets (including capitalized leases) .......... 418,837
Other real estate owned ........................................... 36,598
Investment in unconsolidated subsidiaries and associated /////////
companies ...................................................... 37,868
Customer's liability to this bank on acceptances outstanding ...... 91,787
Intangible assets ................................................. 382,749
Other assets ...................................................... 1,043,467
Total assets ...................................................... 27,852,777
LIABILITIES
Deposits:
In domestic offices ...................................... 20,810,085
Noninterest-bearing ........................ 3,480,114
Interest-bearing ........................... 17,329,971
In foreign offices, Edge and Agreement subsidiaries,
and IBFs ................................................. 736,612
Noninterest-bearing ........................ 136
Interest-bearing ........................... 736,476
Federal funds purchased and securities sold under agreements
to repurchase .................................................. 2,581,021
Demand notes issued to the U.S. Treasury .......................... 64,236
Trading liabilities ............................................... 0
Other borrowed money: /////////
With original maturity of one year or less ............... 0
With original maturity of more than one year ............. 7,510
Mortgage indebtedness and obligations under capitalized leases .... 5,777
Bank's liability on acceptances executed and outstanding .......... 93,594
Subordinated notes and debentures ................................. 450,000
Other liabilities ................................................. 812,999
Total liabilities ................................................. 25,561,834
Limited-life preferred stock and related surplus .................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 160,540
Common Stock ...................................................... 452,156
Surplus ........................................................... 1,303,224
Undivided profits and capital reserves ............................ 342,689
Net unrealized holding gains (losses) on available-for-sale /////////
securities ..................................................... 32,334
Cumulative foreign currency translation adjustments ............... 0
Total equity capital .............................................. 2,290,943
Total liabilities, limited-life preferred stock and equity /////////
capital ........................................................ 27,852,777
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS A TRUSTEE
----------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_
----------
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 South College Street, Charlotte, North Carolina 28288-0630
(Address of Principal Executive Offices) (Zip code)
----------
(Name, address and telephone number of agent for service)
ENTERPRISE CAPITAL TRUST III
(Name of Obligor)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer
Identification No.)
80 Park Plaza, Newark, New Jersey 07101
(Address of Principal Executive Offices) (Zip Code)
----------
__________% TRUST PREFERRED SECURITIES
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Richmond, VA 23219
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities of
the trustee:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Item 4. Trusteeships under Other Indentures:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not Applicable
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Not Applicable
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for the obligations in default by
the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Whether the Amount owned beneficially Percentage of class
securities are or held as collateral represented by
voting or Security for obligations amount given in
nonvoting in default by Trustee Col. C.
Title of Class Securities
- --------------------------------------------------------------------------------
Not Applicable
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
issuer and Amount security for obligations amount given in
title of class outstanding in default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
2
<PAGE>
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
or held as collateral represented by
Name of security for obligations in amount given in
Issuer and Amount default by Trustee Col. C
title of class outstanding
- --------------------------------------------------------------------------------
Not Applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
Issuer and Amount security for obligations in amount given in
title of class outstanding default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. D.
- --------------------------------------------------------------------------------
Nature of indebtedness Amount outstanding Date due
- --------------------------------------------------------------------------------
Not Applicable
3
<PAGE>
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not Applicable
Item 16. Lists of Exhibits.
Listed below are all exhibits filed as part of this statement of eligibility.
1* -Copy of Articles of Association of the Trustee as now in effect.
2 -No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
3* -Copy of the authorization of the Trustee to exercise corporate trust
powers.
4* -Copy of the existing By-Laws of the Trustee, as now in effect.
5 -Not applicable.
6 -The consent of the Trustee required by Section 321(b) of the Act.
7 -A copy of the latest report of Condition of the Trustee published
pursuant to the law or the requirements of its supervising or
examining authority.
8 -Not Applicable
9 -Not Applicable
- ----------
*Exhibits thus designated have heretofore been filed with the Securities and
Exchange Commission, have not been amended since filing and are incorporated
herein by reference (see Exhibit T-1 Registration Number 333-47985).
In answering any item in this statement of eligibility and qualification
which relates to matters peculiarly within the knowledge of the obligor or of
its directors or officers, or an underwriter for the obligor, the undersigned,
First Union National Bank, has relied upon information furnished to it by the
obligor or such underwriter.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Newark, and State of New Jersey, on the 30th day
of April, 1998.
First Union National Bank
(Trustee)
(CORPORATE SEAL)
By: /s/ Frank Gallagher
------------------------------
Vice President
5
<PAGE>
Exhibit T-6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, and in connection with the proposed issue of Public Service Enterprise
Group, Incorporated, we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Frank Gallagher
------------------------------
Vice President
Newark, NJ
April 30, 1998
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association, at the close of business on September 30, 1997, published
in response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161.
Charter Number 33869 Comptroller of the Currency Northeastern District.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ............. 1,725,148
Interest-bearing balances ...................................... 4,216,934
Securities /////////
Hold-to-maturity securities .................................... 337,471
Available-for-sale securities .................................. 3,949,655
Federal funds sold and securities purchased under agreements
to resell ...................................................... 51,999
Loans and lease financing receivables:
Loan and leases, net of unearned income ..... 15,757,193
LESS: Allowance for loan and lease losses ... 196,929
LESS: Allocated transfer risk reserve ....... 0
Loans and leases, net of unearned income, allowance, and
reserve .................................................. 15,560,264
Assets held in trading accounts ................................... 0
Premises and fixed assets (including capitalized leases) .......... 418,837
Other real estate owned ........................................... 36,598
Investment in unconsolidated subsidiaries and associated /////////
companies ...................................................... 37,868
Customer's liability to this bank on acceptances outstanding ...... 91,787
Intangible assets ................................................. 382,749
Other assets ...................................................... 1,043,467
Total assets ...................................................... 27,852,777
LIABILITIES
Deposits:
In domestic offices ...................................... 20,810,085
Noninterest-bearing ........................ 3,480,114
Interest-bearing ........................... 17,329,971
In foreign offices, Edge and Agreement subsidiaries,
and IBFs ................................................. 736,612
Noninterest-bearing ........................ 136
Interest-bearing ........................... 736,476
Federal funds purchased and securities sold under agreements
to repurchase .................................................. 2,581,021
Demand notes issued to the U.S. Treasury .......................... 64,236
Trading liabilities ............................................... 0
Other borrowed money: /////////
With original maturity of one year or less ............... 0
With original maturity of more than one year ............. 7,510
Mortgage indebtedness and obligations under capitalized leases .... 5,777
Bank's liability on acceptances executed and outstanding .......... 93,594
Subordinated notes and debentures ................................. 450,000
Other liabilities ................................................. 812,999
Total liabilities ................................................. 25,561,834
Limited-life preferred stock and related surplus .................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 160,540
Common Stock ...................................................... 452,156
Surplus ........................................................... 1,303,224
Undivided profits and capital reserves ............................ 342,689
Net unrealized holding gains (losses) on available-for-sale /////////
securities ..................................................... 32,334
Cumulative foreign currency translation adjustments ............... 0
Total equity capital .............................................. 2,290,943
Total liabilities, limited-life preferred stock and equity /////////
capital ........................................................ 27,852,777
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS A TRUSTEE
----------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_
----------
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 South College Street, Charlotte, North Carolina 28288-0630
(Address of Principal Executive Offices) (Zip code)
----------
(Name, address and telephone number of agent for service)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(Name of Obligor)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer
Identification No.)
80 Park Plaza, Newark, New Jersey 07101
(Address of Principal Executive Offices) (Zip Code)
----------
Guarantee of Enterprise Capital Trust II Preferred Securities
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Richmond, VA 23219
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities of
the trustee:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Item 4. Trusteeships under Other Indentures:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not Applicable
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Not Applicable
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for the obligations in default by
the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Whether the Amount owned beneficially Percentage of class
securities are or held as collateral represented by
voting or Security for obligations amount given in
nonvoting in default by Trustee Col. C.
Title of Class Securities
- --------------------------------------------------------------------------------
Not Applicable
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
issuer and Amount security for obligations amount given in
title of class outstanding in default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
2
<PAGE>
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
or held as collateral represented by
Name of security for obligations in amount given in
Issuer and Amount default by Trustee Col. C
title of class outstanding
- --------------------------------------------------------------------------------
Not Applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
Issuer and Amount security for obligations in amount given in
title of class outstanding default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. D.
- --------------------------------------------------------------------------------
Nature of indebtedness Amount outstanding Date due
- --------------------------------------------------------------------------------
Not Applicable
3
<PAGE>
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not Applicable
Item 16. Lists of Exhibits.
Listed below are all exhibits filed as part of this statement of eligibility.
1* -Copy of Articles of Association of the Trustee as now in effect.
2 -No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
3* -Copy of the authorization of the Trustee to exercise corporate trust
powers.
4* -Copy of the existing By-Laws of the Trustee, as now in effect.
5 -Not applicable.
6 -The consent of the Trustee required by Section 321(b) of the Act.
7 -A copy of the latest report of Condition of the Trustee published
pursuant to the law or the requirements of its supervising or
examining authority.
8 -Not Applicable
9 -Not Applicable
- ----------
*Exhibits thus designated have heretofore been filed with the Securities and
Exchange Commission, have not been amended since filing and are incorporated
herein by reference (see Exhibit T-1 Registration Number 333-47985).
In answering any item in this statement of eligibility and qualification
which relates to matters peculiarly within the knowledge of the obligor or of
its directors or officers, or an underwriter for the obligor, the undersigned,
First Union National Bank, has relied upon information furnished to it by the
obligor or such underwriter.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Newark, and State of New Jersey, on the 30th day
of April, 1998.
First Union National Bank
(Trustee)
(CORPORATE SEAL)
By: /s/ Frank Gallagher
------------------------------
Vice President
5
<PAGE>
Exhibit T-6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, and in connection with the proposed issue of Public Service Enterprise
Group, Incorporated, we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Frank Gallagher
------------------------------
Vice President
Newark, NJ
April 30, 1998
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association, at the close of business on September 30, 1997, published
in response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161.
Charter Number 33869 Comptroller of the Currency Northeastern District.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ............. 1,725,148
Interest-bearing balances ...................................... 4,216,934
Securities /////////
Hold-to-maturity securities .................................... 337,471
Available-for-sale securities .................................. 3,949,655
Federal funds sold and securities purchased under agreements
to resell ...................................................... 51,999
Loans and lease financing receivables:
Loan and leases, net of unearned income ..... 15,757,193
LESS: Allowance for loan and lease losses ... 196,929
LESS: Allocated transfer risk reserve ....... 0
Loans and leases, net of unearned income, allowance, and
reserve .................................................. 15,560,264
Assets held in trading accounts ................................... 0
Premises and fixed assets (including capitalized leases) .......... 418,837
Other real estate owned ........................................... 36,598
Investment in unconsolidated subsidiaries and associated /////////
companies ...................................................... 37,868
Customer's liability to this bank on acceptances outstanding ...... 91,787
Intangible assets ................................................. 382,749
Other assets ...................................................... 1,043,467
Total assets ...................................................... 27,852,777
LIABILITIES
Deposits:
In domestic offices ...................................... 20,810,085
Noninterest-bearing ........................ 3,480,114
Interest-bearing ........................... 17,329,971
In foreign offices, Edge and Agreement subsidiaries,
and IBFs ................................................. 736,612
Noninterest-bearing ........................ 136
Interest-bearing ........................... 736,476
Federal funds purchased and securities sold under agreements
to repurchase .................................................. 2,581,021
Demand notes issued to the U.S. Treasury .......................... 64,236
Trading liabilities ............................................... 0
Other borrowed money: /////////
With original maturity of one year or less ............... 0
With original maturity of more than one year ............. 7,510
Mortgage indebtedness and obligations under capitalized leases .... 5,777
Bank's liability on acceptances executed and outstanding .......... 93,594
Subordinated notes and debentures ................................. 450,000
Other liabilities ................................................. 812,999
Total liabilities ................................................. 25,561,834
Limited-life preferred stock and related surplus .................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 160,540
Common Stock ...................................................... 452,156
Surplus ........................................................... 1,303,224
Undivided profits and capital reserves ............................ 342,689
Net unrealized holding gains (losses) on available-for-sale /////////
securities ..................................................... 32,334
Cumulative foreign currency translation adjustments ............... 0
Total equity capital .............................................. 2,290,943
Total liabilities, limited-life preferred stock and equity /////////
capital ........................................................ 27,852,777
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS A TRUSTEE
----------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_
----------
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 South College Street, Charlotte, North Carolina 28288-0630
(Address of Principal Executive Offices) (Zip code)
----------
(Name, address and telephone number of agent for service)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(Name of Obligor)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer
Identification No.)
80 Park Plaza, Newark, New Jersey 07101
(Address of Principal Executive Offices) (Zip Code)
----------
Guarantee of Enterprise Capital Trust III Preferred Securities
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Richmond, VA 23219
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities of
the trustee:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Item 4. Trusteeships under Other Indentures:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
If the trustee or any of the directors or executive officers of the trustee
is a director, officer, partner, employee, appointee, or representative of the
obligor or of any underwriter for the obligor, identify each such person having
any such connection and state the nature of each such connection.
Not Applicable
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Percentage of Voting
Amount owned securities represented
Name of Owner Title of Class beneficially by amount given in Col. C
- --------------------------------------------------------------------------------
Not Applicable
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for the obligations in default by
the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Whether the Amount owned beneficially Percentage of class
securities are or held as collateral represented by
voting or Security for obligations amount given in
nonvoting in default by Trustee Col. C.
Title of Class Securities
- --------------------------------------------------------------------------------
Not Applicable
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
issuer and Amount security for obligations amount given in
title of class outstanding in default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
2
<PAGE>
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
or held as collateral represented by
Name of security for obligations in amount given in
Issuer and Amount default by Trustee Col. C
title of class outstanding
- --------------------------------------------------------------------------------
Not Applicable.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Amount owned beneficially Percentage of class
Name of or held as collateral represented by
Issuer and Amount security for obligations in amount given in
title of class outstanding default by Trustee Col. C
- --------------------------------------------------------------------------------
Not Applicable.
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information:
As of April 30, 1998
- --------------------------------------------------------------------------------
Col. A Col. B Col. D.
- --------------------------------------------------------------------------------
Nature of indebtedness Amount outstanding Date due
- --------------------------------------------------------------------------------
Not Applicable
3
<PAGE>
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not Applicable
Item 16. Lists of Exhibits.
Listed below are all exhibits filed as part of this statement of eligibility.
1* -Copy of Articles of Association of the Trustee as now in effect.
2 -No certificate of authority of the Trustee to commence business is
furnished since this authority is contained in the Articles of
Association of the Trustee.
3* -Copy of the authorization of the Trustee to exercise corporate trust
powers.
4* -Copy of the existing By-Laws of the Trustee, as now in effect.
5 -Not applicable.
6 -The consent of the Trustee required by Section 321(b) of the Act.
7 -A copy of the latest report of Condition of the Trustee published
pursuant to the law or the requirements of its supervising or
examining authority.
8 -Not Applicable
9 -Not Applicable
- ----------
*Exhibits thus designated have heretofore been filed with the Securities and
Exchange Commission, have not been amended since filing and are incorporated
herein by reference (see Exhibit T-1 Registration Number 333-47985).
In answering any item in this statement of eligibility and qualification
which relates to matters peculiarly within the knowledge of the obligor or of
its directors or officers, or an underwriter for the obligor, the undersigned,
First Union National Bank, has relied upon information furnished to it by the
obligor or such underwriter.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Newark, and State of New Jersey, on the 30th day
of April, 1998.
First Union National Bank
(Trustee)
(CORPORATE SEAL)
By: /s/ Frank Gallagher
------------------------------
Vice President
5
<PAGE>
Exhibit T-6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, and in connection with the proposed issue of Public Service Enterprise
Group, Incorporated, we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Frank Gallagher
------------------------------
Vice President
Newark, NJ
April 30, 1998
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association, at the close of business on September 30, 1997, published
in response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161.
Charter Number 33869 Comptroller of the Currency Northeastern District.
Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin ............. 1,725,148
Interest-bearing balances ...................................... 4,216,934
Securities /////////
Hold-to-maturity securities .................................... 337,471
Available-for-sale securities .................................. 3,949,655
Federal funds sold and securities purchased under agreements
to resell ...................................................... 51,999
Loans and lease financing receivables:
Loan and leases, net of unearned income ..... 15,757,193
LESS: Allowance for loan and lease losses ... 196,929
LESS: Allocated transfer risk reserve ....... 0
Loans and leases, net of unearned income, allowance, and
reserve .................................................. 15,560,264
Assets held in trading accounts ................................... 0
Premises and fixed assets (including capitalized leases) .......... 418,837
Other real estate owned ........................................... 36,598
Investment in unconsolidated subsidiaries and associated /////////
companies ...................................................... 37,868
Customer's liability to this bank on acceptances outstanding ...... 91,787
Intangible assets ................................................. 382,749
Other assets ...................................................... 1,043,467
Total assets ...................................................... 27,852,777
LIABILITIES
Deposits:
In domestic offices ...................................... 20,810,085
Noninterest-bearing ........................ 3,480,114
Interest-bearing ........................... 17,329,971
In foreign offices, Edge and Agreement subsidiaries,
and IBFs ................................................. 736,612
Noninterest-bearing ........................ 136
Interest-bearing ........................... 736,476
Federal funds purchased and securities sold under agreements
to repurchase .................................................. 2,581,021
Demand notes issued to the U.S. Treasury .......................... 64,236
Trading liabilities ............................................... 0
Other borrowed money: /////////
With original maturity of one year or less ............... 0
With original maturity of more than one year ............. 7,510
Mortgage indebtedness and obligations under capitalized leases .... 5,777
Bank's liability on acceptances executed and outstanding .......... 93,594
Subordinated notes and debentures ................................. 450,000
Other liabilities ................................................. 812,999
Total liabilities ................................................. 25,561,834
Limited-life preferred stock and related surplus .................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus ..................... 160,540
Common Stock ...................................................... 452,156
Surplus ........................................................... 1,303,224
Undivided profits and capital reserves ............................ 342,689
Net unrealized holding gains (losses) on available-for-sale /////////
securities ..................................................... 32,334
Cumulative foreign currency translation adjustments ............... 0
Total equity capital .............................................. 2,290,943
Total liabilities, limited-life preferred stock and equity /////////
capital ........................................................ 27,852,777
