EXHIBIT 4(C)
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INDENTURE
between
SOUTH JERSEY GAS COMPANY
and
THE BANK OF NEW YORK, as Trustee
Dated as of March [ ], 1997
Providing for the Issuance of
[ ]% Deferrable Interest Subordinated Debentures
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions..................................... 3
SECTION 1.02. Other Definitions............................... 8
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act.................................. 8
SECTION 1.04. Rules of Construction........................... 9
SECTION 1.05. Acts of Holders and Holders of
Preferred Securities........................... 9
ARTICLE II
The Debentures
--------------
SECTION 2.01. Issue of Debentures Generally................... 10
SECTION 2.02. Terms and Form of the Debentures................ 11
SECTION 2.03. Payment of Principal and Interest............... 12
SECTION 2.04. Execution, Authentication and
Delivery....................................... 14
SECTION 2.05. Registrar and Paying Agent...................... 16
SECTION 2.06. Paying Agent to Hold Money
in Trust....................................... 17
SECTION 2.07. Debentureholder Lists........................... 17
SECTION 2.08. Transfer and Exchange........................... 18
SECTION 2.09. Replacement Debentures.......................... 18
SECTION 2.10. Outstanding Debentures;
Determinations of Holders' Action.............. 19
SECTION 2.11. Temporary Debentures............................ 20
SECTION 2.12. Book-Entry System............................... 20
SECTION 2.13. Cancelation..................................... 22
ARTICLE III
Redemption
----------
SECTION 3.01. Redemption: Notice of Trustee................... 23
SECTION 3.02. Selection of Debentures to be
Redeemed....................................... 23
SECTION 3.03. Notice of Redemption............................ 23
SECTION 3.04. Effect of Notice of Redemption.................. 24
PAGE
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SECTION 3.05. Deposit of Redemption Price..................... 24
SECTION 3.06. Debentures Redeemed in Part..................... 25
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Debentures........................... 25
SECTION 4.02. Prohibition Against Dividends, etc.............. 26
SECTION 4.03. SEC Reports..................................... 26
SECTION 4.04. Compliance Certificates......................... 27
SECTION 4.05. Further Instruments and Acts.................... 27
SECTION 4.06. Payments for Consents........................... 27
SECTION 4.07. Payment of Expenses of Trust.................... 27
ARTICLE V
Successor Corporation
---------------------
SECTION 5.01. When the Company May Merge, etc................. 28
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01 Events of Default............................... 29
SECTION 6.02. Acceleration.................................... 30
SECTION 6.03. Other Remedies.................................. 31
SECTION 6.04. Waiver of Past Defaults......................... 31
SECTION 6.05. Control by Majority............................. 32
SECTION 6.06. Limitation on Suits............................. 32
SECTION 6.07. Rights of Holders to Receive
Payment........................................ 33
SECTION 6.08. Collection Suit by the Trustee.................. 33
SECTION 6.09. The Trustee May File Proofs
of Claim....................................... 33
SECTION 6.10. Priorities...................................... 34
SECTION 6.11. Undertaking for Costs........................... 34
SECTION 6.12. Waiver of Stay; Extension or Usury
Laws........................................... 35
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PAGE
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ARTICLE VII
The Trustee
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SECTION 7.01. Duties of the Trustee............................. 35
SECTION 7.02. Rights of the Trustee............................. 36
SECTION 7.03. Individual Rights of the Trustee.................. 37
SECTION 7.04. The Trustee's Disclaimer.......................... 37
SECTION 7.05. Notice of Defaults................................ 37
SECTION 7.06. Reports by Trustee to Holders..................... 38
SECTION 7.07. Compensation and Indemnity........................ 38
SECTION 7.08. Replacement of Trustee............................ 39
SECTION 7.09. Successor Trustee by Merger....................... 40
SECTION 7.10. Eligibility: Disqualification..................... 40
SECTION 7.11. Preferential Collection of
Claims Against the Company....................... 40
ARTICLE VIII
Satisfaction and Discharge of Indenture;
----------------------------------------
Defeasance of Certain Obligations; Unclaimed Moneys
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SECTION 8.01. Satisfaction and Discharge
of Indenture..................................... 41
SECTION 8.02. Application by Trustee of Funds
Deposited for Payment of
Debentures....................................... 42
SECTION 8.03. Repayment of Moneys Held by Paying
Agent............................................ 42
SECTION 8.04. Return of Moneys Held by the
Trustee and Paying Agent
Unclaimed for Three Years........................ 43
ARTICLE IX
Amendments
-----------
SECTION 9.01. Without Consent of Holders........................ 43
SECTION 9.02. With Consent of Holders........................... 43
SECTION 9.03. Compliance with Trust Indenture
Act.............................................. 45
SECTION 9.04. Revocation and Effect of Consents;
Waivers and Actions.............................. 45
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PAGE
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SECTION 9.05. Notation on or Exchange of
Debentures...................................... 46
SECTION 9.06. Trustee to Execute Supplemental
Indentures...................................... 46
SECTION 9.07. Effect of Supplemental
Indentures...................................... 46
ARTICLE X
Subordination
-------------
SECTION 10.01. Debentures Subordinated to Senior
Indebtedness.................................... 46
SECTION 10.02. Priority and Payment of Proceeds
in Certain Events: Remedies Standstill.......... 47
SECTION 10.03. Payments which May Be Made
Prior to Notice................................. 48
SECTION 10.04. Rights of Holders of Senior
Indebtedness Not to Be
Impaired........................................ 48
SECTION 10.05. Trustee May Take Action to
Effectuate Subordination........................ 49
SECTION 10.06. Subrogation...................................... 49
SECTION 10.07. Obligations of Company
Unconditional; Reinstatement.................... 50
SECTION 10.08. Trustee Entitled to Assume
Payments Not Prohibited in
Absence of Notice............................... 50
SECTION 10.09. Right of Trustee to Hold Senior
Indebtedness.................................... 51
ARTICLE XI
Miscellaneous
-------------
SECTION 11.01. Trust Indenture Act Controls..................... 52
SECTION 11.02. Notices.......................................... 52
SECTION 11.03. Communication by Holders with
Other Holders................................... 53
SECTION 11.04. Certificate and Opinion as to
Conditions Precedent............................ 53
SECTION 11.05. Statements Required in Certificate
or Opinion...................................... 53
SECTION 11.06. Severability Clause.............................. 54
SECTION 11.07. Rules by Trustee, Paying Agent
and Registrar................................... 54
SECTION 11.08. Legal Holidays................................... 54
SECTION 11.09. Governing Law.................................... 54
SECTION 11.10. No Recourse Against Others....................... 54
SECTION 11.11. Successors....................................... 54
iv
PAGE
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SECTION 11.12. Multiple Original Copies of
this Indenture...................... 55
SECTION 11.13. No Adverse Interpretation of
Other Agreements.................... 55
SECTION 11.14. Table of Contents: Headings,
etc................................. 55
SECTION 11.15. Benefits of the Indenture............ 55
South Jersey Gas Company Indenture
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939
Trust Indenture Indenture
Act Section Section
----------- -------
Sec. 310 (a) (1) ........................ 7.10
(a)(2) ........................ 7.10
(a)(3) ........................ Not Applicable
(a)(4) ........................ Not Applicable
(a)(5) ........................ Not Applicable
(b) ........................ Not Applicable
(c) ........................ 7.08; 7.10; 11.01
Sec. 311(a) ........................ Not Applicable
(b) ........................ 7.11
(c) ........................ Not Applicable
Sec. 312(a) ........................ 2.07
(b) ........................ 11.03
(c) ........................ 11.03
Sec. 313(a) ........................ 7.06
(b)(1) ........................ Not Applicable
(b)(2) ........................ 7.06
(c) ........................ 7.06; 11.02
(d) ........................ 7.06
Sec. 314(a) ........................ 4.03; 11.02
(b) ........................ Not Applicable
(c)(1) ........................ 2.02; 11.04; 11.05
(c)(2) ........................ 2.02; 11.04; 11.05
(c)(3) ........................ Not Applicable
(d) ........................ Not Applicable
(e) ........................ 11.05
(f) ........................ Not Applicable
Sec. 315(a) ........................ 7.01(b)
(b) ........................ 7.05, 11.02
(c) ........................ 7.01(a)
(d) ........................ 7.01(c)
(e) ........................ 6.11
Sec. 316(a)(1)(A) ........................ 6.05
(a)(1)(B) ........................ 6.04
(a)(2) ........................ Not Applicable
(a)(last sentence) ........................ 2.10
(b) ........................ 6.07
(c) ........................ 1.05
Sec. 317(a)(1) ........................ 6.08
(a)(2) ........................ 6.09
(b) ........................ 2.06
Sec. 318(a) ........................ 11.01
(b) ........................ Not Applicable
(c) ........................ 11.01
______________________
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Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Indenture.
INDENTURE, dated as of March [ ], 1997, by and between
South Jersey Gas Company, a New Jersey corporation duly organized
and existing under the laws of the State of New Jersey (the
"Company"), and The Bank of New York, a New York banking
corporation duly organized and existing under the laws of the
United States of America, as trustee (the "Trustee").
WHEREAS, the Company may from time to time create or establish one or more
statutory business trusts for the purpose of issuing undivided beneficial
interests in the assets thereof (the "Trust Securities") and using the proceeds
thereof to acquire the Company's Deferrable Interest Subordinated Debentures.
WHEREAS, pursuant to an Amended and Restated Trust Agreement dated as of
March [ ], 1997 (the "Trust Agreement") among the Company, as depositor, The
Bank of New York, as Property Trustee (the "Property Trustee"), the Delaware
Trustee named therein and the Administrative Trustee named therein, there has
been declared and established SJG Capital Trust, a Delaware business trust (the
"Trust").
WHEREAS, the Trust intends to issue its Trust Securities, including its [
]% Preferred Securities, representing undivided beneficial interests in the
assets of the Trust, having a liquidation amount of $25 per security and having
rights provided therefor in the Trust Agreement (the "Preferred Securities").
WHEREAS, the Company has authorized the issuance of its [ ]% Deferrable
Interest Subordinated Debentures (the "Debentures") to be purchased by the Trust
with the proceeds from the issuance and sale of its Trust Securities, and to
provide therefor, the Company has duly authorized the execution and delivery of
this Indenture.
WHEREAS, all things necessary to make the securities issued hereunder, when
duly issued and executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Indenture a
valid and binding agreement of the Company, enforceable in accordance with its
terms, have been done.
NOW, THEREFORE, Each of the Company and the Trustee, intending to be
legally bound hereby, agrees as follows for the benefit of the other party and
for the equal
2
and ratable benefit of the Holders (as hereinafter defined) of the securities
issued hereunder, including the Debentures:
ARTICLE I
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions.
------------
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. When used with respect to any Person,
"control" means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or the Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee or (ii) a certificate signed by the
authorized officer or officers to whom the Board of Directors has delegated its
authority, and in each case, delivered to the Trustee.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in The City of New York or the State of New Jersey
are authorized or required by law or executive order to close.
"Capital Lease Obligations" of a Person means any obligation which is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such Person prepared in accordance with GAAP.
"Capital Stock" means any and all shares, interests, rights to
purchase, warrants, options, participation or other equivalents of or interests
in (however designated) corporate stock.
"Company" means South Jersey Gas Company, a New Jersey corporation, or
any successor thereto.
3
"Company Order" means a written request or order signed in the name of
the Company by an Officer of the Company and delivered to the Trustee.
"Debentureholder" or "Holder" means a Person in whose name a Debenture
is registered on the Registrar's books.
"Debentures" means any of the Company's [ ]% Deferrable Interest
Subordinated Debentures issued, authenticated and delivered under this
Indenture.
"Default" means any event which is, or after notice or passage of
time, or both, would be, an Event of Default pursuant to Section 6.01 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extension Period", with respect to the Debentures, means the period
during which the Company may elect to extend the interest payment period of the
Debentures pursuant to Section 4.01(b) hereof; provided that no Extension Period
shall extend beyond the Stated Maturity Date or the Redemption Date of any
Debenture.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board as applied by the Company on a
consistent basis.
"Guarantee Agreement" means the Guarantee Agreement dated as of March
[ ], 1997 from the Company, as guarantor, to The Bank of New York, as guarantee
trustee, with respect to the Preferred Securities.
"Indebtedness" means, without duplication, (i) the principal of and
premium (if any) in respect of (A) indebtedness of the Company for money
borrowed and (B) indebtedness evidenced by securities, debentures, bonds or
other similar instruments issued by the Company; (ii) all Capital Lease
Obligations of the Company; (iii) all obligations of the Company issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of the Company for the
reimbursement of any obligation, any letter of credit, banker's acceptance,
4
security purchase facility or similar credit transaction (other than obligations
with respect to letters of credit securing obligations (other than obligations
described in (i) through (iii) above) entered into in the ordinary course of
business by the Company to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no later than
the third business day following receipt by the Company of a demand for
reimbursement following payment on the applicable letter of credit); (v) all
obligations of the type referred to in clauses (i) through (iv) of other Persons
and all dividends of other Persons (other than the Preferred Securities or
similar securities) for the payment of which, in either case, the Company is
responsible or liable as obligor, guarantor or otherwise (other than the
Guarantee Agreement or obligations ranking pari passu with the Guarantee
Agreement); and (vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons secured by any lien on any property or asset of the
Company (whether or not such obligation is assumed by the Company), the amount
of such obligation being deemed to be the lesser of the value of such property
or assets or the amount of the obligation so secured; provided, however, that
Indebtedness will not include endorsements of negotiable instruments for
collection in the ordinary course of business.
"Indenture" means this indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Interest Payment Date", when used with respect to the Debentures,
means the stated maturity of any installment of interest on the Debentures.
"Issue Date", with respect to the Debentures, means the date on which
the Debentures are originally issued.
"Officer" means, with respect to any corporation, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
such corporation.
"Officer's Certificate" means a written certificate containing the
applicable information specified in Sections 11.04 and 11.05 hereof, signed in
the name of the Company by any one of its Officers, and delivered to the
Trustee.
5
"Opinion of Counsel" means a written opinion containing the applicable
information specified in Sections 11.04 and 11.05 hereof, by the Company's
counsel or other legal counsel who is reasonably acceptable to the Trustee.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and premium, if any, and interest on the Debentures on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Predecessor Debentures" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and for purposes of this definition, any
Debenture authenticated and delivered under Section 2.09 hereof in exchange for
or in lieu of a mutilated, destroyed, lost or stolen Debenture shall be deemed
to evidence the same debt as the mutilated, destroyed, lost or stolen Debenture.
"Preferred Securities" means the [ ]% Preferred Securities of the
Trust, representing undivided beneficial interests in the assets of the Trust,
having a liquidation amount of $25 per security and having rights provided
therefor in the Trust Agreement.
"Property Trustee" means The Bank of New York and its successors and
assigns, as property trustee under the Trust Agreement.
"Record Date", with respect to the Debentures, means the Regular
Record Date, the Special Record Date or any date set to determine the Holders of
Debentures entitled to vote, consent, make a request or exercise any other right
associated with such Debentures.
"Redemption Date", with respect to the Debentures to be redeemed,
means the date specified for the redemption thereof in accordance with the terms
thereof and pursuant to Article 3 of this Indenture.
"Redemption Price", with respect to the Debentures to be redeemed,
means the price at which such Debenture is to be redeemed in accordance with the
terms thereof and pursuant to Article 3 of this Indenture.
6
"Regular Record Date", with respect to an interest payment on the
Debentures, means the date set forth in this Indenture for the determination of
Holders entitled to receive payment of interest on the next succeeding Interest
Payment Date.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, amended.
"Senior Indebtedness" means all Indebtedness, except for Indebtedness
that is by its terms subordinated to or pari passu with the Debentures.
---- -----
"Special Record Date" for the payment of any Defaulted Interest on the
Debentures means the date determined pursuant to Section 2.03 hereof.
"Stated Maturity Date", with respect to any Debenture, means the date
specified for such Debenture as the fixed date on which the principal of such
Debenture is due and payable.
"Subsidiary" means any corporation, association, partnership, trust or
other business entity of which more than 50% of the total voting power of shares
of Capital Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by (i) the Company, (ii) the Company and one or more
Subsidiaries, or (iii) one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended and as in
effect on the date of this Indenture; provided, however, that if the TIA is
amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"Trust" means SJG Capital Trust, a Delaware statutory business trust
created under the Delaware Business Trust Act, Chapter 38 of Title 12 Del. C.
Sec. 3801, et seq.
-- ---
"Trust Agreement" means the Amended and Restated Trust Agreement dated
as of May [ ], 1997, among the Company, as Depositor, The Bank of New York, as
Property Trustee, the Delaware Trustee named
7
therein and the Administrative Trustee named therein, as the same may be amended
and modified from time to time.
"Trust Officer", when used with respect to the Trustee, means any
Senior Vice President, any Vice President, any Assistant Vice President, any
Trust Officer, or Assistant Trust Officer or any other officer of the Corporate
Trust Department of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Trust Securities" means the undivided beneficial interests in the
assets of the Trust.
"Trustee" means The Bank of New York, until a successor replaces it
pursuant to the applicable provisions of this Indenture and, thereafter, shall
mean such successor.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock of
which (other than directors' qualifying shares) is owned by the Company or
another Wholly Owned Subsidiary.
SECTION 1.02. Other Definitions.
------------------
TERM DEFINED IN SECTION
---- ------------------
"Act"....................... 1.05
"Bankruptcy Law"............ 6.01
"Custodian"................. 6.01
"Defaulted Interest"........ 2.03
"Depositary"................ 2.12
"global Debenture".......... 2.12
"Legal Holiday"............. 11.08
"Notice of Default"......... 6.01
"Register".................. 2.05
"Registrar"................. 2.05
"Successor"................. 5.01
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SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Debentures.
"indenture security holder" means a Debentureholder or Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Debentures.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
----------------------
requires:
(1) Each capitalized term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
(5) words in the singular include the plural, and words in the plural
include the singular; and
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
SECTION 1.05. Acts of Holders and Holders of Preferred Securities.
----------------------------------------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders or by
holders of Preferred Securities may be embodied in and evidenced by one or more
instruments of
9
substantially similar tenor signed by such Holders or holders of Preferred
Securities, as applicable, in person or by an agent duly appointed in writing
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of Holders or holders of Preferred Securities
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Debentures shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debenture shall bind every future
Holder of the same Debenture and the Holder of every Debenture issued upon the
registration or transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debenture.
(e) If the Company solicits from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a resolution of its Board of Directors, fix in
advance a Record Date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a Record Date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such Record Date, but only Holders of
record at the close of business on such Record Date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Debentures have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Debentures shall be computed as of
such Record Date.
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ARTICLE II
The Debentures
--------------
SECTION 2.01. Issue of Debentures Generally. The aggregate principal
------------------------------
amount of Debentures which may be authenticated and delivered under this
Indenture is limited to the aggregate liquidation amount of the Trust Securities
of the Trust.
The Debentures and the Trustee's Certificate of Authentication shall
be substantially in the forms to be attached as exhibits to the Indenture.
SECTION 2.02. Terms and Form of the Debentures. (a) The Debentures
---------------------------------
shall be designated "South Jersey Gas Company, [ ]% Deferrable Interest
Subordinated Debentures." The Debentures and the Trustee's Certificate of
Authentication shall be substantially in the form of Exhibit A attached hereto.
The Debentures shall initially be issued as global Debentures in accordance with
the provisions of Section 2.12 of this Indenture, with The Depository Trust
Company as Depositary. The terms and provisions contained in the Debentures
shall constitute, and are hereby expressly made, a part of this Indenture. The
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(b) The aggregate principal amount of Debentures outstanding at any
time may not exceed $36,082,475 except as provided in Section 2.09 hereof. The
Debentures shall be authenticated and delivered upon delivery to the Trustee of
items specified in Section 2.04(d) hereof.
(c) The Stated Maturity Date of the Debentures is April 30.
(d) The interest rate of the Debentures is [ ]% per annum. The
Interest Payment Dates for the Debentures are March 31, June 30, September 30
and December 31 of each year, commencing June 30, 1997. In the event that any
date on which interest is payable on the Debentures is not a Business Day, then
payment of interest payable on such date will be made on the next day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The Regular
Record Date for each Interest Payment Date for the
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Debentures shall be the 15th day (whether or not a Business Day) of the last
month of each calendar quarter, provided that if the Trust is the sole Holder of
the Debentures or the Debentures are issued in book-entry only form, the Regular
Record Date shall be the close of business on the Business Day immediately
preceding such Interest Payment Date.
Each Debenture shall bear interest from its Issue Date or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for with respect to such Debenture; except that, so long as there is no
existing Defaulted Interest (as defined in Section 2.03 hereof) or Extension
Period on the Debentures, any Debenture authenticated by the Trustee between the
Regular Record Date for any Interest Payment Date and such Interest Payment Date
shall bear interest from such Interest Payment Date.
Overdue principal of and interest on any Debenture and interest which
has been deferred pursuant to Section 4.01(b) hereof shall bear interest (to the
extent that the payment of such interest shall be legally enforceable) at a rate
per annum equal to the interest rate per annum payable on such Debenture.
(e) The Debentures shall be issuable only in registered form without
coupons and only in denominations of $25 and any integral multiple thereof.
(f) The maximum Extension Period for the Debentures shall be 20
consecutive quarters.
SECTION 2.03. Payment of Principal and Interest. Unless otherwise
----------------------------------
specified pursuant to Section 2.01(d), interest on the Debentures shall be
computed on the basis of a 360-day year composed of twelve 30-day months, and
for any period shorter than thirty days, interest will be computed on the basis
of the actual number of days elapsed in such period based on 30-day months.
Unless otherwise provided,
(i) the principal and Redemption Price of and interest on each
Debenture shall be payable in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts;
(ii) the principal and Redemption Price of any Debenture and interest
payable on the Stated Maturity Date (if other than an Interest Payment
Date) or
12
Redemption Date shall be payable upon surrender of such Debenture at the
office or agency of any Paying Agent therefor; and
(iii) interest on any Debenture shall be paid on each Interest Payment
Date therefor to the Holder thereof at the close of business on the Record
Date therefor, such interest to be payable by check mailed to the address
of the Person entitled thereto as such address appears on the Register;
provided however, that (1) at the written request of the Holder of at least
$10,000,000 aggregate principal amount of Debentures received by the
Registrar not later than the Regular Record Date for such Interest Payment
Date, interest accrued on such Debenture will be payable by wire transfer
within the continental United States in immediately available funds to the
bank account number of such Holder specified in such request and entered on
the Register by the Registrar and (2) payments made in respect of global
Debentures shall be made in immediately available funds to the Depositary.
Except as specified pursuant to Section 2.01 or Section 4.01(b)
hereof, interest on any Debenture which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date for such interest. Any
interest on any Debenture which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Company, at its election in each case, as provided in Clause (1) and
(2) below.
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Debentures (or their respective Predecessor
Debentures) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall, not less than 15 Business Days prior to the date of
the proposed payment, notify the Trustee and the Paying Agent in writing of the
amount of Defaulted Interest proposed to be paid on each Debenture and the date
of the proposed payment, and at the same time the Company shall deposit with the
Paying Agent an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Paying Agent for
13
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. The Special Record Date for the
payment of such Defaulted Interest shall be the close of business on the tenth
calendar day prior to the date of the proposed payment. The Trustee shall, in
the name and at the expense of the Company, cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be given to
the Holders thereof, not less than 7 calendar days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been given, such Defaulted Interest shall be paid to
the Persons in whose names the Debentures (or their respective Predecessor
Debentures) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Debentures in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Debentures may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee and the Paying Agent of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the Paying
Agent.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debenture.
SECTION 2.04. Execution, Authentication and Delivery. (a) The
---------------------------------------
Debentures shall be executed on behalf of the Company by its Chairman, its
President or one of its Vice Presidents, under its corporate seal imprinted or
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. The signature of any such Officer on the Debentures may be manual
or facsimile.
(b) Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper Officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debentures or
did not hold such offices at the date of such Debentures.
14
(c) No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debenture a Certificate of Authentication duly executed by the Trustee by manual
signature of an authorized signatory, and such Certificate of Authentication
upon any Debenture shall be conclusive evidence, and the only evidence, that
such Debenture has been duly authenticated and made available for delivery
hereunder.
(d) The Trustee shall authenticate and deliver the Debentures, for
original issue, at one time or from time to time in accordance with the Company
Order referred to below, upon receipt by the Trustee of:
(1) a Board Resolution approving the form or forms and terms of such
Debentures;
(2) a Company Order requesting the authentication and delivery of
such Debentures and stating the identity of the Trust and the aggregate
liquidation amount of the Trust Securities to be issued concurrently with such
Debentures;
(3) unless previously delivered, this Indenture setting forth the
form of such Debentures and establishing the terms thereof;
(4) the Debentures, executed on behalf of the Company in accordance
with Section 2.04(a) hereof;
(5) an Opinion of Counsel to the effect that:
(i) the form or forms of such Debentures have been duly authorized by
the Company and have been established in conformity with the provisions of
this Indenture; and
(ii) such Debentures, when authenticated and delivered by the Trustee
and issued and delivered by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will have been duly issued
under this Indenture and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided by this
Indenture, and enforceable in accordance with their terms, subject, as to
enforcement to laws relating to or affecting generally the enforcement of
creditors' rights, including, without limitation, bankruptcy and insolvency
laws and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
15
(iii) that this Indenture has been duly authorized, executed and
delivered by the Company and is a valid instrument legally binding upon the
Company, enforceable in accordance with its terms, subject as to
enforcement to laws relating to or affecting creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and
(iv) that all consents, approvals and orders of any commission,
governmental authority or agency required in connection with the issuance
and delivery of such Debentures have been obtained.
(e) an Officer's Certificate certifying that no Default or Event of
Default has occurred and is continuing.
(f) The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent. An authenticating
agent may authenticate Debentures whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by
such agent. The Trustee shall pay any authenticating agent appointed by the
Trustee reasonable compensation for its services and the Trustee shall be
reimbursed for such payment by the Company pursuant to Section 7.07 hereof. The
provisions set forth in Section 7.02, Section 7.03, Section 7.04 and Section
7.07 hereof shall be applicable to any authenticating agent.
SECTION 2.05. Registrar and Paying Agent. The Company shall
---------------------------
maintain or cause to be maintained, within or outside the State of New York, an
office or agency where the Debentures may be presented for registration of
transfer or for exchange ("Registrar"), a Paying Agent at whose office the
Debentures may be presented or surrendered for payment, and an office or agency
where notices and demands to or upon the Company in respect of the Debentures
and this Indenture may be served. The Registrar shall keep a register (the
"Register") of the Debentures and of their transfer and exchange. The Company
may have one or more co-Registrars and one or more additional Paying Agents. The
term Registrar includes any additional registrar and the term Paying Agent
includes any additional paying agent. The corporate office of the Trustee in
New York, shall initially be the Registrar for the Debentures and agent for
service of notice or demands on the Company, and the Trustee shall initially be
the Paying Agent for the Debentures.
16
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-Registrar (if not the Company or the Trustee or an
affiliate of the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall give prompt written-
notice to the Trustee and to the Holders of any change of location of such
office or agency. If at any time the Company shall fail to maintain or cause to
be maintained any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
11.02 hereof. The Company shall notify the Trustee of the name and address of
any such agent. If the Company fails to maintain a Registrar, Paying Agent or
agent for service of notices or demands, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 7.07
hereof. The Company or any Affiliate of the Company may act Paying Agent,
Registrar or co-Registrar or agent for service of notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee and to the Holders of any
such designation or rescission and of any change in location of any such other
office or agency.
SECTION 2.06. Paying Agent to Hold Money in Trust. Except as
------------------------------------
otherwise provided herein, prior to or on each due date of the principal of and
premium (if any) and interest on any Debenture, the Company shall deposit with
the Paying Agent a sum of money sufficient to pay such principal, premium (if
any) and interest so becoming due. The Company shall require each Paying Agent
(other than the Trustee or the Company) to agree in writing that such Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the payment of principal of and premium (if any)
and interest on the Debentures and shall notify the Trustee of any Default by
the Company in making any such payment. At any time during the continuance of
any such Default, the Paying Agent shall, upon the request of the Trustee,
forthwith pay to the Trustee all money so held in trust and account for any
money disbursed by it. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee and to account for any money disbursed by
it. Upon doing so, the Paying Agent shall have no further liability for the
money so paid over to the Trustee. If the Company, a Subsidiary or an Affiliate
of either of them acts as Paying Agent, it
17
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund.
SECTION 2.07. Debentureholder Lists. The Trustee shall preserve in
----------------------
as current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Debentureholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee on or before
the Record Date for each Interest Payment Date and at such other times as the
Trustee may request in writing, within five Business Days of such request, a
list, in such form as the Trustee may reasonably require of the names and
addresses of Debentureholders.
SECTION 2.08. Transfer and Exchange. When Debentures are presented
----------------------
to the Registrar or a Co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Debentures of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transactions are met. To
permit registrations of transfer and exchanges, the Company shall execute and
the Trustee shall authenticate Debentures, all at the Registrar's request.
Every Debenture presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Registrar duly executed by the Holder or his attorney duly
authorized in writing.
The Company shall not require payment of a service charge for any
registration of transfer or exchange of Debentures, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of the transfer
or exchange of Debentures from the Debentureholder requesting such transfer or
exchange (other than any exchange of a temporary Debenture for a definitive
Debenture not involving any change in ownership).
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of (a) any Debenture for a period beginning at
the opening of business 15 days before the mailing of a notice of redemption of
Debentures and ending at the close of business on the day of such mailing or (b)
any Debenture selected, called or being called for redemption, except, in the
case
18
of any Debenture to be redeemed in part, the portion thereof not to be redeemed.
SECTION 2.09. Replacement Debentures. If (a) any mutilated Debenture
-----------------------
is surrendered to the Company or the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Debenture, and there is delivered to the Company and the Trustee such Debenture
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Trustee that such Debenture has been
acquired by a bona fide purchaser, the Company shall execute in exchange for any
such mutilated Debenture or in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture of like tenor and principal amount, bearing a number
not contemporaneously outstanding, and the Trustee shall authenticate and make
such new Debenture available for delivery. In case any such mutilated,
destroyed, lost or stolen Debenture has become or is about to become due and
payable, or is about to be redeemed by the Company pursuant to Article 3 hereof,
the Company in its discretion may, instead of issuing a new Debenture, pay or
purchase such Debenture, as the case may be.
Upon the issuance of any new Debentures under this Section 2.09, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Debenture issued pursuant to this Section 2.09 in lieu of
any mutilated, destroyed, lost or stolen Debenture shall constitute an original
additional contractual obligation of the Company (whether or not the mutilated,
destroyed, lost or stolen Debenture shall be at any time enforceable) and shall
be entitled to all benefits of this Indenture equally and ratably with any and
all other Debentures duly issued hereunder.
The provisions of this Section 2.09 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 2.10. Outstanding Debentures; Determinations of Holders'
--------------------------------------------------
Action. Debentures outstanding at any time are all the Debentures
-------
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancelation, those mutilated, destroyed, lost or stolen Debentures
referred to in Section 2.09 hereof, those redeemed by the Company pursuant to
Article 3 hereof, and those
19
described in this Section 2.10 as not outstanding. A Debenture does not cease to
be outstanding because the Company or a Subsidiary or Affiliate thereof holds
the Debenture; provided, however, that in determining whether the Holders of the
requisite principal amount of Debentures have given or concurred in any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Debentures owned by the Company or a Subsidiary or Affiliate (other than the
Trust so long as any of the Preferred Securities of the Trust are outstanding)
shall be disregarded and deemed not to be outstanding.
Subject to the foregoing, only Debentures outstanding at the time of
such determination shall be considered in any such determination (including
determinations pursuant to Articles 3, 6 and 9).
If a Debenture is replaced pursuant to Section 2.09 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Debenture is held by a bona fide purchaser.
If the Paying Agent (other than the Company) holds, in accordance with
this Indenture, at the Stated Maturity Date or on a Redemption Date, money
sufficient to pay the Debentures payable on that date, then immediately on the
Stated Maturity Date or such Redemption Date, as the case may be, such
Debentures shall cease to be outstanding, and interest, if any, on such
Debentures shall cease to accrue.
SECTION 2.11. Temporary Debentures. The Company may execute
---------------------
temporary Debentures, and upon the Company's Order, the Trustee shall
authenticate and make such temporary Debentures available for delivery.
Temporary Debentures shall be printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, in the same principal
amount and of like tenor as the definitive Debentures in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the Officers of the Company executing such Debentures may
determine, as conclusively evidenced by their execution of such Debentures.
After the preparation of definitive Debentures, the temporary
Debentures shall be exchangeable for definitive Debentures upon surrender of the
temporary Debentures at the office or agency of the Company designated for such
purpose pursuant to Section 2.05 hereof, without
20
charge to the Holders thereof. Upon surrender for cancelation of any one or more
temporary Debentures, the Company shall execute a like principal amount of
definitive Debentures of authorized denominations, and the Trustee, upon receipt
of a Company Order, shall authenticate and make such Debentures available for
delivery in exchange therefor. Until so exchanged, the temporary Debentures
shall in all respects be entitled to the same benefits under this Indenture as
definitive Debentures.
SECTION 2.12 Book-Entry System. In order to utilize a book-entry-
------------------
only system for all or any portion of the Debentures, all or a portion of the
Debentures may be issued in the form of one or more fully registered Debentures
for the aggregate principal amount of such Debentures of each Issue Date,
interest rate and Stated Maturity Date (a "global Debenture"), which global
Debenture shall be registered in the name of the depositary (the "Depositary")
selected by the Company or in the name of such Depositary's nominee. Each global
Debenture shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and shall bear a legend substantially to the following
effect: "Except as otherwise provided in Section 2.12 of the Indenture, this
Debenture may be transferred, in whole but not in part, only to another nominee
of the Depositary or to a successor Depositary or to a nominee of such successor
Depositary."
Notwithstanding any other provision of this Section 2.12 or of Section
2.08 hereof, a global Debenture may be transferred in whole but not in part and
in the manner provided in Section 2.08 hereof, only by a nominee of the
Depositary, or by the Depositary or any such nominee of a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
If (i) at any time the Depositary for global Debentures notifies the
Company that it is unwilling or unable to continue as Depositary for such global
Debentures or if at any time the Depositary for such global Debentures shall no
longer be registered or in good standing under the Exchange Act or other
applicable statute or regulation, and a successor Depositary for such global
Debentures is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be,
(ii) the Company determines in its sole discretion, that the Debentures shall no
longer be represented by one or more global Debentures and delivers to the
Trustee an Officer's Certificate evidencing such determination or (iii) an Event
of Default occurs and is continuing, then the provisions of this Section 2.12
shall
21
no longer apply to the Debentures. In such event, the Company will execute and
the Trustee, upon receipt of an Officer's Certificate evidencing such
determination by the Company, will authenticate and deliver Debentures of like
tenor in definitive registered form, in authorized denominations, and in
aggregate principal amount equal to the principal amount of the global
Debentures in exchange for such global Debentures. Upon the exchange of global
Debentures for such Debentures in definitive registered form without coupons, in
authorized denominations, the global Debentures shall be canceled by the
Trustee. Such Debentures in definitive registered form issued in exchange for
global Debentures pursuant to this Section 2.12 shall be registered in such
names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Debentures to the Persons
in whose names such Debentures are so registered.
Except as provided above, owners of beneficial interests in a global
Debenture shall not be entitled to receive physical delivery of Debentures in
definitive form and will not be considered the Holders thereof for any purpose
under this Indenture.
Members of or participants in the Depositary shall have no rights
under this Indenture with respect to any global Debenture held on their behalf
by the Depositary, and such Depositary or its nominee, as the case may be, may
be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the Holder of such global Debentures for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to any
written certification proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its members or participants, the
operation of customary practices governing exercise of the rights of a Holder of
any Debenture, including without limitation the granting of proxies or other
authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under this Indenture.
SECTION 2.13. Cancelation. All Debentures surrendered for payment
------------
or redemption to the Company pursuant to Article 3 hereof or registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly
22
canceled by the Trustee. The Company may at any time deliver to the Trustee for
cancelation any Debentures previously authenticated and made available for
delivery hereunder which the Company may have acquired in any manner whatsoever,
and all Debentures so delivered shall be promptly canceled by the Trustee. The
Company may not reissue or issue new Debentures to replace Debentures it has
paid or delivered to the Trustee for cancelation. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures canceled as provided
in this Section 2.13, except as expressly permitted by this Indenture. All
canceled Debentures held by the Trustee shall be disposed of as directed by a
Company Order provided, however, that the Trustee may, but shall not, be
required to destroy such canceled securities.
ARTICLE III
Redemption
----------
SECTION 3.01. Redemption; Notice of Trustee. (a) The Debentures are
------------------------------
subject to redemption prior to maturity as provided therein.
(b) If any or all of the Debentures are to be redeemed pursuant to
Section 3.01 (a) hereof, the Company shall deliver to the Trustee at least 60
days prior to the Redemption Date a Company Order specifying the principal
amount of Debentures to be redeemed and the Redemption Date and Redemption Price
for such Debentures. Such Company Order shall be accompanied by a Board
Resolution authorizing such redemption. If the Debentures are held by the
Trust, the Company shall also deliver a copy of such Company Order to the
Property Trustee for the Trust.
SECTION 3.02. Selection of Debentures to be Redeemed. If less than
---------------------------------------
all the outstanding Debentures are to be redeemed at any time, the Trustee shall
select the Debentures to be redeemed by lot or by any other method the Trustee
considers fair and appropriate. The Trustee shall make the selection at least 30
but not more than 60 days before the Redemption Date from outstanding Debentures
not previously called for redemption. Provisions of this Indenture that apply to
Debentures called for redemption also apply to portions of Debentures called for
redemption. The Trustee shall notify the Company promptly of the Debentures or
portions of Debentures to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more
---------------------
than 60 days before the Redemption Date,
23
the Trustee, in the Company's name and at the Company's expense, shall mail or
cause to be mailed a notice of redemption by first-class mail, postage prepaid,
to each Holder of Debentures to be redeemed at such Holder's last address as it
appears in the Register.
The notice of redemption shall identify the Debentures to be redeemed,
the provision of the Debentures or this Indenture pursuant to which the
Debentures called for redemption are being redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that payment of the Redemption Price of Debentures called for
redemption will be made only upon surrender of such Debentures to the
Paying Agent;
(5) if fewer than all the outstanding Debentures are to be redeemed,
the identification and principal amounts of the particular Debentures to be
redeemed and that, on and after the Redemption Date, upon surrender of such
Debentures, a new Debenture or Debentures of like tenor and in a principal
amount equal to the unredeemed portion thereof will be issued;
(6) that, unless the Company defaults in paying the Redemption Price
of the Debentures called for redemption, plus accrued interest thereon to
the Redemption Date, interest will cease to accrue on such Debentures on
and after the Redemption Date;
(7) the CUSIP number; and
(8) that Redemption is conditioned upon receipt by the Property
Trustee of the Redemption Price.
Any notice of redemption given in the manner provided herein shall be
conclusively presumed to have been given, whether or not such notice is actually
received. Failure to mail any notice or defect in the mailed notice or the
mailing thereof in respect of any Debenture shall not affect the validity of the
redemption of any other Debenture.
SECTION 3.04 Effect of Notice of Redemption. After notice of
-------------------------------
redemption has been given, Debentures called for redemption shall become due and
payable on the
24
Redemption Date and at the Redemption Price and from and after the Redemption
Date (unless the Company shall default in the payment of the Redemption Price
and accrued interest), such Debentures shall cease to bear interest. Upon the
later of the Redemption Date and the date such Debentures are surrendered to the
Paying Agent, such Debentures shall be paid at the Redemption Price, plus
accrued interest to the Redemption Date, provided that installments of interest
on Debentures with an Interest Payment Date which is on or prior to the
Redemption Date shall be payable to the Holders of such Debentures, or one or
more Predecessor Debentures, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and provisions.
SECTION 3.05 Deposit of Redemption Price. On or prior to the
----------------------------
Redemption Date, the Company shall deposit with the Paying Agent (or if the
Company or an Affiliate is the Paying Agent, shall segregate and hold in trust
or cause such Affiliate to segregate and hold in trust) money sufficient to pay
the Redemption Price of, and accrued interest on, all Debentures to be redeemed
on that Redemption Date. The Paying Agent shall return to the Company any money
in excess of the amount sufficient to pay the Redemption Price of, and accrued
interest on, all Debentures to be redeemed and any interest accrued on the
amount deposited pursuant to this Section 3.05.
SECTION 3.06 Debentures Redeemed in Part. Upon surrender of a
----------------------------
Debenture that is redeemed in part, the Trustee shall authenticate for the
Holder a new Debenture in a principal amount equal to the unredeemed portion of
such Debenture.
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Debentures. (a) The Company shall pay the
----------------------
principal of and premium, if any, and interest (including interest accruing
during an Extension Period and/or on or after the filing of a petition in
bankruptcy or reorganization relating to the Company, whether or not a claim for
post-filing interest is allowed in such proceeding) on the Debentures on or
prior to the dates and in the manner provided in such Debentures or pursuant to
this Indenture. An installment of principal, premium, if any, or interest shall
be considered paid on the applicable due date if on such date the Trustee or the
Paying Agent holds, in accordance with this Indenture, money
25
sufficient to pay all of such installment then due. With respect to any
Debenture, the Company shall pay interest on overdue principal and interest on
overdue installments of interest (including interest accruing during an
Extension Period and/or on or after the filing of a petition in bankruptcy or
reorganization relating to the Company, whether or not a claim for post-filing
interest is allowed in such proceeding), to the extent lawful, at the rate per
annum borne by such Debenture, compounded quarterly. Interest on overdue
interest shall accrue from the date such amount became overdue.
(b) Notwithstanding the provisions of Section 4.01(a) hereof or any
other provision herein to the contrary, the Company shall have the right in its
sole and absolute discretion at any time and from time to time while the
Debentures are outstanding, so long as no Event of Default with respect to such
Debentures has occurred and is continuing, to defer payments of interest by
extending the interest payment period for such Debentures for the Extension
Period, if any, for such Debentures, provided that such Extension Period shall
not extend beyond the Stated Maturity Date or Redemption Date of any Debenture,
and provided further that at the end of each Extension Period the Company shall
pay all interest then accrued and unpaid (together with interest thereon to the
extent permitted by applicable law at the rate per annum borne by such
Debentures). Prior to the termination of an Extension Period, the Company may
shorten or may further extend the interest payment period for such Debentures,
provided that such Extension Period together with all such previous and further
extensions may not exceed the maximum duration of the Extension Period for such
Debentures or extend beyond the Stated Maturity Date or Redemption Date of any
Debenture. The Company shall give the Trustee notice of the Company's election
to begin an Extension Period for any Debentures and any shortening or extension
thereof at least five Business Days prior to the date the notice of the record
or payment date of the related distribution on the Preferred Securities issued
by the Trust which is the Holder of the Debentures or the date payment of
interest on such Debentures is required to be given to any national securities
exchange on which such Preferred Securities or Debentures are then listed or
other applicable self-regulatory organization, but in any event not less than
five Business Days prior to the Record Date fixed by the Company for the payment
of such interest. The Company shall give or cause the Trustee to give notice (a
form of which shall be provided by the Company to the Trustee) of the Company's
election to begin an Extension Period to the Holders by first class mail,
postage prepaid.
26
SECTION 4.02. Prohibition Against Dividends, etc. The Company shall
-----------------------------------
not declare or pay any dividend on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its Capital Stock (i) during an
Extension Period, (ii) if at such time there shall have occurred and is
continuing any Default or Event of Default, or (iii) if the Company shall be in
default with respect to its payment or other obligations under the Guarantee
Agreement.
SECTION 4.03. SEC Reports. The Company shall file with the Trustee,
------------
within 15 days after it files them with the SEC, copies of its annual report and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe) which
the Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. If the Company is not subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with the Trustee
such information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which are
specified in Sections 13 or 15(d) of the Exchange Act. The Company shall also
comply with the provisions of Section 314(a) of the TIA.
SECTION 4.04. Compliance Certificates. (a) The Company shall
------------------------
deliver to the Trustee, within 90 days after the end of each of the Company's
fiscal years, an Officer's Certificate stating whether or not the signer knows
of any Default or Event of Default. Such certificate shall contain a
certification from the principal executive officer, principal financial officer
or principal accounting officer of the Company as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture. For
purposes of this Section 4.04(a), such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture. If such Officer does know of such a Default or Event of Default, the
Officer's Certificate shall describe any such Default or Event of Default, and
its status. Such Officer's Certificate need not comply with Sections 11.04 and
11.05 hereof.
(b) The Company shall deliver to the Trustee any information
reasonably requested by the Trustee in connection with the compliance by the
Trustee or the Company with the TIA.
SECTION 4.05. Further Instruments and Acts. Upon request of the
-----------------------------
Trustee, the Company shall execute and deliver such further instruments and do
such further acts as
27
may be reasonably necessary or proper to carry out more effectively the purposes
of this Indenture.
SECTION 4.06. Payments for Consents. Neither the Company nor any
----------------------
Subsidiary shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Debentures for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture or the Debentures unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Debentures who so consent, waive or agree to amend in the time frame set forth
in the documents soliciting such consent, waiver or agreement.
SECTION 4.07. Payment of Expenses of Trust. The Company covenants
-----------------------------
for the benefit of the Holders of the Debentures to pay all of the obligations,
costs and expenses of the Trust in accordance with Section 2.03(b) of the Trust
Agreement and to pay the taxes of the Trust in accordance with Section 2.03(c)
of the Trust Agreement in order to permit the Trust to make distributions on and
redemptions of the Preferred Securities in accordance with Article IV of the
Trust Agreement.
ARTICLE V
Successor Corporation
---------------------
SECTION 5.01. When the Company May Merge, etc. The Company may not
--------------------------------
consolidate with or merge with or into, or sell, convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety (either in
one transaction or a series of transactions) to, any Person unless:
(1) the Person formed by or surviving such consolidation or merger or
to which such sale, conveyance, transfer or lease shall have been made (the
"Successor") if other than the Company, (a) is organized and existing under the
laws of the United States of America or any State thereof or the District of
Columbia, and (b) shall expressly assume by a supplemental indenture, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Debentures and the Indenture;
(2) immediately prior to and after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the Successor
Person or any
28
Subsidiary as a result of such transaction as having been incurred by such
Person or such Subsidiary at the time of such transaction), no Default or Event
of Default shall have occurred and be continuing; and
(3) the Company delivers to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, sale,
conveyance, transfer or lease and such supplemental indenture comply with this
Indenture.
The Successor will be the successor to the Company, and will be
substituted for, and may exercise every right and power and become the obligor
on the Debentures with the same effect as if the Successor had been named as the
Company herein but, in the case of a sale, conveyance, transfer or lease of all
or substantially all of the assets of the Company, the predecessor Company will
not be released from its obligation to pay the principal of and premium, if any,
and interest on the Debentures.
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs with
------------------
respect to the Debentures if one of the following shall have occurred and be
continuing:
(1) The Company defaults in the payment, when due and payable, of (a)
interest on any Debenture and the default continues for a period of 30 days;
provided, that during an Extension Period for the Debentures, failure to pay
interest on the Debentures shall not constitute a Default or Event of Default
hereunder, or (b) the principal of or premium, if any, on any Debentures when
the same becomes due and payable on the Stated Maturity Date thereof, upon
acceleration, on any Redemption Date, or otherwise;
(2) The Company defaults in the performance of or fails to comply
with any of its other covenants or agreements in the Debentures or this
Indenture and such failure continues for 60 days after receipt by the Company of
a "Notice of Default";
(3) The Company, pursuant to or within the meaning of any Bankruptcy
Law:
(a) commences a voluntary case or proceeding;
29
(b) consents to the entry of an order for relief against it in an
involuntary case or proceeding;
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property, and such Custodian is not
discharged within 60 days;
(d) makes a general assignment for the benefit of its creditors; or
(e) admits in writing its inability to pay its debts generally as
they become due; or
(4) A court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company in an involuntary case or
proceeding;
(b) appoints a Custodian of the Company for all or substantially
all of its properties;
(c) orders the liquidation of the Company;
(d) and in each case the order or decree remains unstayed or
undischarged and in effect for 60 days.
The foregoing will constitute an Event of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Title 11 of the United States Code, or
any similar federal or state law for the relief of debtors. "Custodian" means
any receiver, trustee, assignee, liquidator, sequestrator, custodian or similar
official under any Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until (i)
the Trustee provides a "Notice of Default" to the Company or the Holders of at
least 25% in aggregate principal amount of the Debentures at the time
outstanding or, if the Debentures are held by the Trust, the holders of at least
25% in aggregate liquidation amount of the outstanding Preferred Securities of
that Trust provide a "Notice of Default" to the Company and the Trustee and (ii)
the Company does not cure such Default within the time
30
specified in clause (2) above after receipt of such notice. Any such notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default."
SECTION 6.02. Acceleration. If any Event of Default with respect to
-------------
the Debentures other than an Event of Default under clause (3) or (4) of Section
6.01 hereof occurs and is continuing, the Trustee or the Holders of at least 25%
in aggregate principal amount of the Debentures then outstanding may declare the
principal of all the Debentures due and payable, provided that in the case of
Debentures then held by the Trust, if upon an Event of Default with respect to
the Debentures, the Trustee has or the Holders of at least 25% in aggregate
principal amount of the Debentures have failed to declare the principal of the
Debentures to be immediately due and payable, the holders of at least 25% in
aggregate liquidation amount of the outstanding Preferred Securities of the
Trust shall have such right by a notice in writing to the Company and the
Trustee. If an Event of Default specified in clause (3) or (4) of Section 6.01
hereof occurs, the principal of and interest on all the Debentures shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Debentureholders. Upon such an
acceleration, such principal, together with all interest accrued thereon, shall
be due and payable immediately.
The Holders of at least a majority in aggregate principal amount of
the Debentures at the time outstanding, in each case, by notice to the Trustee,
may rescind such an acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
with respect to such Debentures have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration,
provided that if the principal of the Debentures has been declared due and
payable by the holders of the Preferred Securities of the Trust, no rescission
of acceleration will be effective unless consented to by the holders of at least
a majority in aggregate liquidation amount of the Preferred Securities of the
Trust. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03 Other Remedies. If an Event of Default occurs and is
---------------
continuing, the Trustee may, in its own name or as trustee of an express trust,
institute, pursue and prosecute any proceeding, including, without limitation,
any action at law or suit in equity or other
31
judicial or administrative proceeding to collect the payment of principal of or
premium, if any, or interest on the Debentures that is in default, to enforce
the performance of any provision of the Debentures or this Indenture or to
obtain any other available remedy. The Trustee may maintain a proceeding even if
it does not possess any of the Debentures or does not produce any of the
Debentures in the proceeding. A delay or omission by the Trustee, any
Debentureholder or the holders of Preferred Securities in exercising any right
or remedy accruing upon an Event of Default shall not impair such right or
remedy or constitute a waiver of, or acquiescence in, such Event of Default. No
remedy is exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults. If a Default or Event of
------------------------
Default with respect to the Debentures has occurred and is continuing, the
Holders of at least a majority in aggregate principal amount of the Debentures
at the time outstanding, or, if Debentures are held by the Trust, the holders of
at least a majority in aggregate liquidation amount of the Preferred Securities
of the Trust, in each case by notice to the Trustee and the Company, may waive
an existing Default or Event of Default and its consequences except a Default or
Event of Default in the payment of the principal of or premium, if any, or
interest on any Debenture. When a Default or Event of Default is waived, it is
deemed cured and shall cease to exist, but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any consequent right.
SECTION 6.05 Control by Majority. The Holders of at least a majority
--------------------
in aggregate principal amount of the Debentures or, if the Debentures are held
by the Trust, the holders of at least a majority in aggregate liquidation amount
of the Preferred Securities of the Trust, may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines in good faith is unduly prejudicial to the rights of
other Debentureholders or may involve the Trustee in personal liability. The
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, including withholding notice to the Holders of
the Debentures of continuing default (except in the payment of the principal of
(other than any mandatory sinking fund payment) or premium, if any, or interest
on any Debentures) if the Trustee considers it in the interest of the Holders of
the Debentures to do so.
32
SECTION 6.06 Limitation on Suits. Except as provided in Section 6.07
--------------------
hereof, no holder of Debentures or holder of Preferred Securities of the Trust
which is the Holder of Debentures may pursue any remedy with respect to this
Indenture or the Debentures unless:
(1) the Holders of Debentures or the holders of such Preferred
Securities give to the Trustee written notice stating that an Event of Default
with respect to the corresponding Debentures is continuing;
(2) the Holders of at least 25% in aggregate principal amount of the
Debentures or the holders of at least 25% in aggregate liquidation amount of
such Preferred Securities make a written request to the Trustee to pursue a
remedy;
(3) the Holders of Debentures or the holders of such Preferred
Securities provide to the Trustee reasonable security and indemnity against any
loss, liability or expense satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security and indemnity; and
(5) during such 60 day period, the Holders of at least a majority in
aggregate principal amount of the Debentures or the holders of at least a
majority in aggregate liquidation amount of such Preferred Securities do not
give the Trustee a direction inconsistent with the request.
A Holder of Debentures or a holder of Preferred Securities may not use
this Indenture to prejudice the rights of another Debentureholder or a holder of
Preferred Securities or to obtain a preference or priority over another
Debentureholder or holder of Preferred Securities.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
-------------------------------------
any other provision of this Indenture, the right of any Holder to receive
payment of the principal of and premium (if any) or interest on the Debentures
held by such Holder, on or after the respective due dates expressed in the
Debentures (in the case of interest, as the same may be extended pursuant to
Section 4.01(b) hereof) or any Redemption Date, is absolute and unconditional
and such right and the right to bring suit for the enforcement of any such
payment on or after such respective dates shall not be impaired or affected
adversely without the consent of such Holder. If the Debentures are
33
then held by a Trust, each holder of Preferred Securities of such Trust shall
have the right to bring suit for the enforcement of payment of Debentures in a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder.
SECTION 6.08. Collection Suit by the Trustee. If an Event of Default
-------------------------------
described in Section 6.01(1) hereof occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any obligor on the Debentures for the whole amount owing with respect
to the Debentures and the amounts provided for in Section 7.07 hereof.
SECTION 6.09. The Trustee May File Proofs of Claim. In case of the
-------------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or its properties or assets, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(1) to file and prove a claim for the whole amount of the principal
of and premium, if any, and interest on the Debentures and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
-----------
to this Article 6, it shall,
34
subject to Article 10 hereof, pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07 hereof;
SECOND: to Holders of Debentures in respect of which or for the
benefit of which such money has been collected for amounts due and unpaid on
such Debentures for the principal amount, Redemption Price or interest, if any,
as the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on such Debentures; and
THIRD: the balance, if any, to the Company.
Except as otherwise set forth in the Debentures, the Trustee may fix a
Record Date and payment date for any payment to Debentureholders pursuant to
this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
----------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder of Debentures or
holder of Preferred Securities pursuant to Section 6.07 hereof or a suit by
Holders of Debentures of more than 10% in aggregate principal amount of the
Debentures or, if the Debentures are held by the Trust, the holders of more than
10% in aggregate liquidation amount of the Preferred Securities of the Trust.
SECTION 6.12. Waiver of Stay; Extension or Usury Laws. The Company
----------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury or other law wherever
enacted, now or at any time hereafter in force, that would prohibit or forgive
the Company from paying all or any portion of the principal of or premium, if
any, or interest on the Debentures as contemplated herein or affect the
covenants or the performance by the Company of its obligations under this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly
35
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 VII
The Trustee
-----------
SECTION 7.01. Duties of the Trustee. (a) If an Event of Default
----------------------
occurs and is continuing with respect to the Debentures, the Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Debentures, (i) the Trustee need perform only those duties that are
specifically set forth in this Indenture or the TIA and no others; and (ii) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, in the case of any certificates
or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own gross
negligent action, its own gross negligent failure to act or its own willful
misconduct, except that:
(i) this Section 7.01(c) does not limit the effect of Section 7.01(b)
hereof;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05 hereof.
36
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to Section 7.01(a), (b), (c) and (e) and Section 7.02 hereof.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives security and indemnity reasonably satisfactory to
it against any loss, liability or expense (including reasonable counsel fees).
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. Except as
otherwise provided in Section 3.05 and Section 8.01 hereof, the Trustee shall
not be liable for interest on any money held by it hereunder.
SECTION 7.02. Rights of the Trustee. (a) The Trustee may rely on
----------------------
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate and, if appropriate, an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officer's Certificate and Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers.
(e) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security and indemnity
37
against the costs, expenses and liabilities (including reasonable counsel fees)
which might be incurred by it in compliance with such request or direction.
SECTION 7.03. Individual Rights of the Trustee. The Trustee in its
---------------------------------
individual or any other capacity may become the owner or pledgee of Debentures
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar or co-
registrar may do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11 hereof.
SECTION 7.04. The Trustee's Disclaimer. The Trustee makes no
-------------------------
representation as to the validity or adequacy of this Indenture or the
Debentures. The Trustee shall not be accountable for the Company's use of the
proceeds from the Debentures, and the Trustee shall not be responsible for any
statement in this Indenture or the Debentures or any report or certificate
issued by the Company hereunder or any registration statement relating to the
Debentures (other than the Trustee's Certificate of Authentication and the
Trustee's Statement of Eligibility on Form T-1), or the determination as to
which beneficial owners are entitled to receive any notices hereunder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
-------------------
continuing with respect to the Debentures and if it is known to the Trustee, the
Trustee shall mail to each Holder of a Debenture notice of the Default within 90
days after it becomes actually known to the Trustee unless such Default shall
have been cured or waived. Except in the case of a Default described in Section
6.01(1) hereof, the Trustee may withhold such notice if and so long as a
committee of Trust Officers in good faith determines that the withholding of
such notice is in the interests of the Holders of the Debentures. The Trustee
shall not be charged with knowledge of any Default (except in the case of a
Default under Section 6.01(1) hereof) unless a responsible Trust Officer
assigned to the Corporate Trust Department of the Trustee shall have actual
knowledge of the Default. The second sentence of this Section 7.05 shall be in
lieu of the proviso to TIA Section 315(b). Said proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
------------------------------
each April 30, beginning with the April 30 next following the date of this
Indenture, the Trustee shall mail to each Debentureholder, and such other
holders that have submitted their names to the Trustee for
38
such purpose, a brief report dated as of such April 30 in accordance with and to
the extent required under TIA Section 313. A copy of each report at the time of
its mailing to Debentureholders shall be filed with the Company, the SEC and any
securities exchange on which the Debentures are listed. The Company agrees to
promptly notify the Trustee whenever the Debentures become listed on any
securities exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company agrees:
---------------------------
(1) to pay to the Trustee from time to time such compensation as
shall be agreed between the Company and the Trustee for all services rendered by
it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, and advances of its agents and counsel, provided
that prior to any Event of Default, the Trustee shall only have one counsel),
including all reasonable expenses and advances incurred or made by the Trustee
in connection with any Event of Default or any membership on any creditors'
committee, except any such expense or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee, its officers, directors and
shareholders, for, and to hold it harmless against, any and all loss, damage,
claim liability or expense, incurred without negligence or willful misconduct on
its part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.
Before, after or during an Event of Default with respect to the
Debentures, the Trustee shall have a claim and lien prior to the Debentures as
to all property and funds held by it hereunder for any amount owing it for its
fees and expenses or any predecessor Trustee pursuant to this Section 7.07,
except with respect to funds held by the Trustee or any Paying Agent in trust
for the payment of principal of or premium, if any, or interest on particular
Debentures pursuant to Section 2.06 or Section 8.01 hereof.
39
The Company's payment obligations pursuant to this Section 7.07 are
not subject to Article 10 of this Indenture and shall survive the discharge of
this Indenture and the resignation or removal of the Trustee. When the Trustee
renders services or incurs expenses after the occurrence of a Default specified
in Section 6.01 hereof, the compensation for services and expenses are intended
to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
-----------------------
time, by so notifying the Company in writing at least 30 days prior to the date
of the proposed resignation; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.08. The Holders of at least a majority in aggregate principal
amount of the Debentures at the time outstanding may remove the Trustee by so
notifying the Trustee in writing and may appoint a successor Trustee, which
shall be subject to the consent of the Company unless an Event of Default has
occurred and is continuing. The Trustee shall resign if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Debentureholders. Subject to payment of all amounts owing to the
Trustee under Section 7.07 hereof and subject further to its lien under Section
7.07, the retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee. If a successor Trustee does not take office
within 30 days after the retiring Trustee resigns or is removed, the Company or
the Holders of
40
at least a majority in aggregate principal amount of the Debentures at the time
outstanding may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Debentureholder may petition any court of competent jurisdiction for its removal
and the appointment of a successor Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
----------------------------
consolidates with, merges or converts into, or transfers or sells all or
substantially all its corporate trust business or assets to another corporation,
the resulting, surviving or transferee corporation without any further act shall
be the successor Trustee.
SECTION 7.10. Eligibility: Disqualification. The Trustee shall at
------------------------------
all times satisfy the requirements of TIA Sections 310(a)(1) and 310(a)(2). The
Trustee (or any Affiliate thereof which has unconditionally guaranteed the
obligations of the Trustee hereunder) shall have a combined capital and surplus
of at least $50,000,000 as set forth in its most recently published annual
report of condition. The Trustee shall comply with TIA Section 310(b). In
determining whether the Trustee has conflicting interests as defined in TIA
Section 310(b)(1), the provisions contained in the proviso to TIA Section
310(b)(1) and the Trustee's Statement of Eligibility on Form T-1 shall be
deemed incorporated herein.
SECTION 7.11. Preferential Collection of Claims Against the Company.
------------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company, the
Trustee shall be subject to the provisions of the TIA regarding the collection
of claims against the Company.
ARTICLE VIII
Satisfaction and Discharge of Indenture;
----------------------------------------
Defeasance of Certain Obligations; Unclaimed Moneys
---------------------------------------------------
SECTION 8.01. Satisfaction and Discharge of Indenture. The Company
----------------------------------------
shall be deemed to have paid and discharged the entire indebtedness on the
Debentures outstanding on the date the Company has irrevocably deposited or
caused to be irrevocably deposited with the Trustee or any Paying Agent as trust
funds in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Debentures (1) cash
41
(which may be held in an interest bearing account insured by the Federal Deposit
Insurance Corporation) in an amount, or (2) U.S. Government Obligations,
maturing as to principal and interest at such times and in such amounts as will
ensure the availability of cash, or (3) a combination thereof, sufficient to pay
the principal of and premium, if any, and interest on all Debentures then
outstanding, provided that in the case of redemption, notice of redemption shall
have been given or the Company shall have irrevocably instructed the Trustee to
give such notice; and further provided that the following conditions shall have
been met:
(A) no Default or Event of Default with respect to the Debentures has
occurred and is continuing on the date of such deposit or occurs as a result of
such deposit;
(B) the Company has delivered to the Trustee an Officer's Certificate
certifying that there does not exist (i) a default in the payment of all or any
portion of any Senior Indebtedness or (ii) any other default affecting Senior
Indebtedness permitting its acceleration as the result of which the maturity of
Senior Indebtedness has been accelerated;
(C) the Company has delivered to the Trustee (i) either a private
Internal Revenue Service ruling or an Opinion of Counsel to the effect that the
Holders of the Debentures will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to federal income tax on the same amount and in the manner and
at the same times as would have been the case if such deposit, defeasance and
discharge had not occurred, and an Opinion of Counsel to the effect that (A) the
deposit shall not result in the Company, the Trustee or, if the Debentures are
held by the Trust, the Trust being deemed to be an "investment company" under
the Investment Company Act of 1940, as amended, and (B) such deposit creates a
valid trust in which the Holders of the Debentures have the sole beneficial
interest or that the Holders of the Debentures have a nonavoidable first
priority security interest in such trust; and
(D) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent relating
to the defeasance contemplated by this provision have been complied with.
42
Upon such deposit, provisions of this Indenture with respect to the
Debentures shall no longer be in effect except as to (1) the rights of
registration of transfer and exchange of the Debentures, (2) the replacement of
apparently mutilated, defaced, destroyed, lost or stolen Debentures, (3) the
rights of the Holders of the Debentures to receive payments of the principal
thereof and premium, if any, and interest thereon, (4) the rights of the Holders
of the Debentures as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them, (5) the obligation of
the Company to maintain an office or agency for payments on and registration of
transfer of the Debentures, (6) the rights, obligations and immunities of the
Trustee hereunder, and (7) the obligations of the Company to the Trustee for
compensation and indemnity under Section 7.07 hereof; and the Trustee shall, at
the request and expense of the Company, execute proper instruments acknowledging
the same.
SECTION 8.02. Application by Trustee of Funds Deposited for Payment
-----------------------------------------------------
of Debentures. Subject to Section 8.04 hereof, all moneys deposited with the
--------------
Trustee pursuant to Section 8.01 hereof shall be held in trust and applied by it
to the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent), to the Holders of the Debentures for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 8.03. Repayment of Moneys Held by Paying Agent. In
-----------------------------------------
connection with the satisfaction and discharge of this Indenture, all moneys
then held by any Paying Agent under this Indenture shall, upon demand of the
Company, be repaid to it or paid to the Trustee, and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
SECTION 8.04. Return of Moneys Held by the Trustee and Paying Agent
-----------------------------------------------------
Unclaimed for Three Years. Any moneys deposited with or paid to the Trustee or
--------------------------
any Paying Agent for the payment of the principal of and premium, if any, or
interest on the Debentures and not applied but remaining unclaimed for three
years after the date when such principal, premium, if any, or interest shall
have become due and payable shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Company by the Trustee or such Paying Agent, and the Holders of
such
43
Debentures shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Company for any payment which such Holder may be entitled to collect, and
all liability of the Trustee or any Paying Agent with respect to such moneys
shall thereupon cease.
ARTICLE IX
Amendments
----------
SECTION 9.01 Without Consent of Holders. From time to time, when
---------------------------
authorized by a resolution of the Board of Directors, the Company and the
Trustee, without notice to or the consent of any Holders of the Debentures, may
amend or supplement this Indenture:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 hereof;
(3) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures;
(4) to make any other change that does not in the reasonable judgment
of the Company adversely affect the rights of any Debentureholder; or
(5) to comply with any requirement of the SEC in connection with the
qualification of this Indenture under the TIA.
SECTION 9.02. With Consent of Holders. The Company and the Trustee
------------------------
may amend this Indenture in any manner not permitted by Section 9.01 or may
waive future compliance by the Company with any provisions of this Indenture
with the consent of the Holders of at least a majority in aggregate principal
amount of the Debentures. Such an amendment or waiver may not, without the
consent of each Holder of the Debentures:
(1) reduce the principal amount of such Debentures;
(2) reduce the principal amount of such Debentures the Holders of
which must consent to an amendment of this Indenture or a waiver;
44
(3) change the stated maturity of the principal of or the interest on
or rate of interest of such Debentures;
(4) change adversely to the Holders the redemption provisions of
Article 3 hereof;
(5) change the currency in respect of which the payments on such
Debentures are to be made;
(6) make any change in Article 10 hereof that adversely affects the
rights of the Holders of the Debentures or any change to any other Section
hereof that adversely affects their rights under Article 10 hereof; or
(7) change Section 6.07 hereof; provided that, in the case of the
outstanding Debentures then held by the Trust, no such amendment shall be made
that adversely affects the holders of the Preferred Securities of the Trust, and
no waiver of any Event of Default with respect to the Debentures or compliance
with any covenant under this Indenture shall be effective, without the prior
consent of the holders of at least a majority of the aggregate liquidation
amount of the outstanding Preferred Securities of the Trust or the holder of
each such Preferred Security, as applicable.
It shall not be necessary for the consent of the Holders of Debentures
or holders of Preferred Securities under this Section 9.02 to approve the
particular form of any proposed amendment, but it shall be sufficient if such
consent approves the substance thereof.
If certain Holders agree to defer or waive certain obligations of the
Company hereunder with respect to Debentures held by them, such deferral or
waiver shall not affect the rights of any other Holder to receive the payment or
performance required hereunder in a timely manner.
After an amendment or waiver under this Section 9.02 becomes
effective, the Company shall mail to each Holder a notice briefly describing the
amendment or waiver. Any failure of the Company to mail such notices, or any
defect therein, shall not, however, in any way impair or affect the validity of
such amendment or waiver.
45
SECTION 9.03. Compliance with Trust Indenture Act. Every
------------------------------------
supplemental indenture executed pursuant to this Article 9 shall comply with the
TIA.
SECTION 9.04 Revocation and Effect of Consents; Waivers and Actions.
-------------------------------------------------------
Until an amendment, waiver or other action by Holders becomes effective, a
consent to it or any other action by a Holder of a Debenture hereunder is a
continuing consent by the Holder and every subsequent Holder of that Debenture
or portion of the Debenture that evidences the same obligation as the consenting
Holder's Debenture, even if notation of the consent, waiver or action is not
made on such Debenture. However, any such Holder or subsequent Holder may
revoke the consent, waiver or action as to such Holder's Debenture or portion of
the Debenture if the Trustee receives the notice of revocation before the
consent of the requisite aggregate principal amount of such Debentures then
outstanding has been obtained and not revoked. After an amendment, waiver or
action becomes effective, it shall bind every Holder of the Debentures, except
as provided in Section 9.02 hereof.
The Company may, but shall not be obligated to, fix a Record Date for
the purpose of determining the Persons entitled to consent to any amendment or
waiver. If a Record Date is fixed, then, notwithstanding the first two sentences
of the immediately preceding paragraph, only Holders of Debentures or holders of
Preferred Securities, as applicable, on such Record Date or their duly
designated proxies, and only those Persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be such after such Record Date. No such
consent shall be valid or effective for more than 90 days after such Record
Date.
SECTION 9.05. Notation on or Exchange of Debentures. Debentures
--------------------------------------
authenticated and made available for delivery after the execution of any
supplemental indenture pursuant to this Article 9 may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and made available for delivery by the
Trustee in exchange for outstanding Debentures.
SECTION 9.06. Trustee to Execute Supplemental Indentures. The
-------------------------------------------
Trustee shall execute any supplemental
46
indenture authorized pursuant to this Article 9 if the supplemental indenture
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, execute it. In executing
such supplemental indenture the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Officer's Certificate and Opinion of
Counsel stating that such supplemental indenture is authorized or permitted by
this Indenture.
SECTION 9.07 Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental indenture under this Article 9, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes and every Holder of Debentures
theretofore or thereafter authenticated and made available for delivery
hereunder shall be bound thereby.
ARTICLE X
Subordination
-------------
SECTION 10.01. Debentures Subordinated to Senior Indebtedness.
-----------------------------------------------
Notwithstanding the provisions of Section 6.10 hereof or any other provision
herein or in any Debenture, the Company and the Trustee and, by their acceptance
thereof, the Holders of the Debentures (a) covenants and agrees that all
payments by the Company of the principal of and premium, if any, and interest on
the Debentures (other than Debentures which have been discharged pursuant to
Article 8) shall be subordinated in accordance with the provisions of this
Article 10 to the prior payment in full, in cash or cash equivalents, of all
amounts payable on, under or in connection with Senior Indebtedness, and (b)
acknowledges that holders of Senior Indebtedness are or shall be relying on this
Article 10.
SECTION 10.02. Priority and Payment of Proceeds in Certain Events:
----------------------------------------------------
Remedies Standstill. (a) Upon any payment or distribution of assets or
--------------------
securities of the Company, as the case may be, of any kind or character, whether
in cash, property or securities, upon any dissolution or winding up or total or
partial liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
all amounts payable on, under or in connection with Senior Indebtedness
(including any interest accruing on such Senior Indebtedness subsequent to the
commencement of a bankruptcy, insolvency or similar proceeding) shall first be
paid in full in cash, or payment provided for in cash or cash equivalents,
before the Holders or the Trustee on behalf of the Holders
47
or the Trustee on behalf of the Holders or the holders of Preferred Securities
shall be entitled to receive from the Company any payment of principal of or
premium, if any, or interest on the Debentures or distribution of any assets or
securities.
(b) No direct or indirect payment by or on behalf of the Company of
principal of or premium, if any, or interest on the Debentures (other than
Debentures which have been discharged pursuant to Article 8), whether pursuant
to the terms of the Debentures or upon acceleration or otherwise, shall be made
if, any the time of such payment, there exists (i) a default in the payment of
all or any portion of any Senior Indebtedness and the Trustee has received
written notice thereof from the Company, from holders of Senior Indebtedness or
from any trustee, representative or agent therefor, or (ii) any other default
affecting Senior Indebtedness, as a result of which the maturity of Senior
Indebtedness has been accelerated and the Trustee has received written notice
from the Company, from holders of Senior Indebtedness or from any trustee,
representative or agent therefor, and such default shall not have been cured or
waived by or on behalf of the holders of such Senior Indebtedness.
(c) If, notwithstanding the foregoing provisions prohibiting such
payment or distribution, the Trustee or any Holder shall have received any
payment on account of the principal of or premium, if any, or interest on the
Debentures when such payment is prohibited by this Section 10.02 and before all
amounts payable on, under or in connection with Senior Indebtedness are paid in
full in cash or cash equivalents, then and in such event (subject to the
provisions of Section 10.08 hereof) such payment or distribution shall be
received and held in trust for the holders of Senior Indebtedness and, at the
written direction of the trustee, representative or agent for the holders of the
Senior Indebtedness, shall be paid to the holders of the Senior Indebtedness
remaining unpaid to the extent necessary to pay such Senior Indebtedness in full
in cash or cash equivalents.
Upon any payment or distribution of assets or securities referred to
in this Article 10, the Trustee and the Holders shall be entitled to rely upon
any order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
and upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making any such payment or distribution,
delivered to the Trustee for the purpose of ascertaining the
48
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 10.
SECTION 10.03. Payments which May Be Made Prior to Notice. Nothing
-------------------------------------------
in this Article 10 or elsewhere in this Indenture shall prevent (i) the Company,
except under the conditions described in Section 10.02 hereof, from making
payments of principal of or premium, if any, or interest on the Debentures or
from depositing with the Trustee any monies for such payments, or (ii) the
application by the Trustee of any monies deposited with it for the purpose of
making such payments of principal of or premium, if any, or interest on the
Debentures, to the Holders entitled thereto, unless at least one Business Day
prior to the date when such payment would otherwise (except for the prohibitions
contained in Section 10.02 hereof) become due and payable the Trustee shall have
received the written notice provided for in Section 10.02(b)(i) or (ii) hereof.
SECTION 10.04. Rights of Holders of Senior Indebtedness Not to Be
--------------------------------------------------
Impaired. No right of any present or future holder of any Senior Indebtedness
---------
to enforce subordination as herein provided shall at any time or in any way be
prejudiced or impaired by any act or failure to act in good faith by any such
holder, or by any noncompliance by the Company with the terms and provisions and
covenants herein regardless of any knowledge thereof any such holder may have or
otherwise be charged with.
The provisions of this Article 10 are intended to be for the benefit
of, and shall be enforceable directly by, the holders of Senior Indebtedness.
Notwithstanding anything to the contrary in this Article 10, to the extent any
Holders or the Trustee have paid over or delivered to any holder of Senior
Indebtedness any payment or distribution received on account of the principal of
or premium (if any) or interest on the Debentures to which any other holder of
Senior Indebtedness shall be entitled to share in accordance with Section 10.02
hereof, no holder of Senior Indebtedness shall have a claim or right against any
Holders or the Trustee with respect to any such payment or distribution or as a
result of the failure to make payments or distributions to such other holder of
Senior Indebtedness.
SECTION 10.05. Trustee May Take Action to Effectuate Subordination.
----------------------------------------------------
Each Holder of a Debenture, by his acceptance thereof, authorizes and directs
the Trustee on his behalf to take such action as may be required by the
49
trustee, representative or agent for holders of Senior Indebtedness or by the
Company to effectuate, as between the holders of Senior Indebtedness and the
Holders, the subordination as provided in this Article 10 and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 10.06. Subrogation. Upon the payment in full, in cash or
------------
cash equivalents, of all Senior Indebtedness, any Holder shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments or
distributions of assets of the Company made on such Senior Indebtedness until
the Debentures shall be paid in full; and for the purposes of such subrogation,
no payments or distributions to holders of such Senior Indebtedness of any cash
property or securities to which such Holders of the Debentures would be entitled
except for this Article 10, and no payment pursuant to this Article 10 to
holders of such Senior Indebtedness by such Holders of the Debentures, shall, as
between the Company, its creditors other than holders of such Senior
Indebtedness and such Holders of the Debentures, be deemed to be a payment by
the Company to or on account of such Senior Indebtedness, it being understood
that the provisions of this Article 10 are solely for the purpose of defining
the relative rights of the holders of such Senior Indebtedness, on the one hand,
and such Holders of the Debentures, on the other hand. If any payment or
distribution to which Holders of Debentures would otherwise have been entitled
but for the provisions of this Article 10 shall have been applied, pursuant to
this Article 10, to the payment of all Senior Indebtedness then and in such case
such Holders of the Debentures shall be entitled to receive from the holders of
such Senior Indebtedness at the time outstanding any payments or distributions
received by such holders of Senior Indebtedness in excess of the amount
sufficient to pay, in cash or cash equivalents, all such Senior Indebtedness in
full.
SECTION 10.07. Obligations of Company Unconditional; Reinstatement.
----------------------------------------------------
Nothing in this Article 10 or elsewhere in this Indenture or in any Debenture is
intended to or shall impair, as between the Company and Holders of the
Debentures, the obligations of the Company, which are absolute and
unconditional, to pay to such Holders the principal of and premium, if any, and
interest on the Debentures as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of such Holders of the Debentures and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
50
prevent the Trustee or any Holder of Debentures or holder of Preferred
Securities, as applicable, from exercising all remedies otherwise permitted by
applicable law under this Indenture, subject to the rights, if any, under this
Article 10 of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
The failure to make a scheduled payment of principal of or premium, if
any, or interest on the Debentures by reason of Section 10.02 shall not be
construed as preventing the occurrence of an Event of Default under Section 6.01
hereof; provided, however, that if (i) the conditions preventing the making of
such payment no longer exist, and (ii) such Holders of the Debentures are made
whole with respect to such omitted payments, the Event of Default relating
thereto (including any failure to pay any accelerated amounts) shall be
automatically waived, and the provisions of the Indenture shall be reinstated as
if no such Event of Default had occurred.
SECTION 10.08. Trustee Entitled to Assume Payments Not Prohibited in
-----------------------------------------------------
Absence of Notice. The Trustee or Paying Agent shall not be charged with the
------------------
knowledge of the existence of any default in the payment of all or a portion of
any Senior Indebtedness or any other default affecting Senior Indebtedness, as a
result of which the maturity of the Senior Indebtedness has been accelerated,
unless and until the Trustee or Paying Agent shall have received written notice
thereof from the Company or one or more holders of Senior Indebtedness or from
any trustee, representative or agent therefor or unless the Trustee or Paying
Agent otherwise had actual knowledge thereof; and, prior to the receipt of any
such written notice or actual knowledge of a responsible Trust Officer in the
Corporate Trust Department of the Trustee or Paying Agent, the Trustee or Paying
Agent may conclusively assume that no such facts exist.
Unless at least one Business Day prior to the date when by the terms
of this Indenture any monies are to be deposited by the Company with the Trustee
or any Paying Agent for any purpose (including, without limitation, the payment
of the principal of or premium, if any, or interest on any Debenture), the
Trustee or Paying Agent shall have received with respect to such monies the
notice provided for in Section 10.02 or a responsible Trust Officer in the
Corporate Trust Department of the Trustee or Paying Agent shall have actual
knowledge of default in the payment of all or a portion of any Senior
Indebtedness or any other default affecting Senior Indebtedness as the result of
which the
51
maturity of the Senior Indebtedness has been accelerated, the Trustee or Paying
Agent shall have full power and authority to receive and apply such monies to
the purpose for which they were received. Neither of them shall be affected by
any notice to the contrary, which may be received by either on or after such
date. The foregoing shall not apply to the Paying Agent if the Company is acting
as Paying Agent. Nothing in this Section 10.08 shall limit the right of the
holders of Senior Indebtedness to recover payments as contemplated by Section
10.02 hereof. The Trustee or Paying Agent shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself to
be a holder of such Senior Indebtedness (or a trustee, representative or agent
on behalf of such holder) to establish that such notice has been given by a
holder of such Senior Indebtedness or a trustee, representative or agent on
behalf of any such holder. The Trustee shall not be deemed to have any duty to
the holders (and shall be fully protected in relying upon such notice) of Senior
Indebtedness.
SECTION 10.09. Right of Trustee to Hold Senior Indebtedness. The
---------------------------------------------
Trustee and any Paying Agent shall be entitled to all of the rights set forth in
this Article 10 in respect of any Senior Indebtedness at any time held by them
to the same extent as any other holder of such Senior Indebtedness, and nothing
in this Indenture shall be construed to deprive the Trustee or any Paying Agent
of any of its rights as such holder.
ARTICLE XI
Miscellaneous
-------------
SECTION 11.01. Trust Indenture Act Controls. If any provision of
-----------------------------
this Indenture limits, qualifies or conflicts with the duties imposed by
operation of subsection (c) of Section 318 of the TIA, the imposed duties shall
control. The provisions of Sections 310 to 317, inclusive, of the TIA that
impose duties on any Person (including provisions automatically deemed included
in an indenture unless the indenture provides that such provisions are excluded)
are a part of and govern this Indenture, except as, and to the extent, they are
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 11.02 Notices. Any notice, request or other communication
--------
required or permitted to be given
52
hereunder shall be in writing and delivered, telecopied or mailed by first-class
mail, postage prepaid, addressed as follows:
if to the Company:
South Jersey Gas Company
Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 00
Xxxxxx, Xxx Xxxxxx
Facsimile No.: [(000)000-0000]
Attention of [Treasurer]
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx-00X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000 or 5596
Attention: Corporate Finance Unit
The Company or the Trustee, by giving notice to the other, may
designate additional or different addresses for subsequent notices of
communications. The Company shall notify the holder, if any, of Senior
Indebtedness of any such additional or different addresses of which the Company
receives notice from the Trustee. Any notice or communication given to a
Debentureholder shall be mailed or delivered to the Debentureholder at the
Debentureholder's address as it appears on the Register of the Registrar and
shall be sufficiently given if mailed within the time prescribed.
Failure to mail a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the
Debentureholders, it shall mail a copy to the Trustee and each Registrar, Paying
Agent or co-Registrar.
SECTION 11.03. Communication by Holders with Other Holders.
--------------------------------------------
Debentureholders may communicate, pursuant to TIA Section 312(b), with other
Debentureholders with respect to their rights under this Indenture or the
Debentures. The Company, the Trustee, the Registrar, the Paying Agent and anyone
else shall have the protection of TIA Section 312(c).
53
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
---------------------------------------------------
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officer's Certificate (complying with Section 11.05 hereof)
stating that, in the opinion of such Officer, all conditions precedent to the
taking of such action have been complied with; and
(2) if appropriate, an Opinion of Counsel (complying with Section
11.05 hereof) stating that, in the opinion of such counsel all such conditions
precedent to the taking of such action have been complied with.
SECTION 11.05 Statements Required in Certificate or Opinion. Each
----------------------------------------------
Officer's Certificate and Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each Person making such Officer's Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officer's Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
matters of fact not involving any legal conclusion, an Opinion of Counsel may
rely on an Officer's Certificate or certificates of public officials.
SECTION 11.06. Severability Clause. If any provision in this
--------------------
Indenture or in the Debentures shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar. The
---------------------------------------------
Trustee may make reasonable rules for action
54
by or a meeting of Debentureholders. The Registrar and Paying Agent may make
reasonable rules for their functions.
SECTION 11.08. Legal Holidays. A "Legal Holiday" is any day other
---------------
than a Business Day. If any specified date (including a date for giving notice)
is a Legal Holiday, the action to be taken on such date shall be taken on the
next succeeding day that is not a Legal Holiday, and if such action is a payment
in respect of the Debentures, unless otherwise specified pursuant to Section
2.01 hereof no principal, premium (if any) or interest installment shall accrue
for the intervening period; except that if any interest payment is due on a
Legal Holiday and the next succeeding day is in the next succeeding calendar
year, such payment shall be made on the Business Day immediately preceding such
Legal Holiday.
SECTION 11.09. Governing Law. This Indenture and the Debentures
--------------
shall be governed by and construed in accordance with the laws of the State of
New Jersey as applied to contracts made and performed within the State of New
Jersey, without regard to its principles of conflicts of laws.
SECTION 11.10. No Recourse Against Others. No director, officer,
---------------------------
employee or stockholder, as such, of the Company shall have any liability for
any obligations of the Company under the Debentures or this Indenture or for any
claim based on, in respect of or by reason of such obligations their creation.
By accepting a Debenture, each Debentureholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Debentures.
SECTION 11.11. Successors. All agreements of the Company in this
-----------
Indenture and Debentures shall bind its successors and assigns. All agreements
of the Trustee in this Indenture shall bind its successors and assigns.
SECTION 11.12 Multiple Original Copies of this Indenture. The
-------------------------------------------
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement. Any
signed copy shall be sufficient proof of this Indenture.
SECTION 11.13. No Adverse Interpretation of Other Agreements. This
----------------------------------------------
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any subsidiary. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
55
SECTION 11.14. Table of Contents: Headings, Etc. The Table of
---------------------------------
Contents, Cross-Reference Table, and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 11.15. Benefits of the Indenture. Except as otherwise
--------------------------
expressly provided herein with respect to holders of Senior Indebtedness and
holders of Preferred Securities, nothing in this Indenture or in the Debentures,
express or implied, shall give to any person, other than the
56
parties hereto and their successors hereunder and the Holders of the Debentures,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
SOUTH JERSEY GAS COMPANY,
by_________________________
Name:
Title:
THE BANK OF NEW YORK, as Trustee,
by_________________________
Name:
Title:
EXHIBIT A
South Jersey Gas Company
_% Deferrable Interest Subordinated Debenture,
No. __
South Jersey Gas Company, a New Jersey corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ____________________
or registered assigns, the principal sum of __________ Dollars on __________,
____, and to pay interest on said principal sum from __________, ____ or from
the most recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for, quarterly in arrears on March 31, June 30,
September 30 and December 31, commencing [ ] (each, an "Interest
Payment Date") at the rate of ___% per annum until the principal hereof shall
have become due and payable, and on any overdue principal and (to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months, and for any period shorter than thirty
days, interest will be computed on the basis of the actual number of days
elapsed in such period based on a 30-day month. In the event that any Interest
Payment Date is not a Business Day, then interest will be payable on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debenture is registered at the close of
business on the Regular Record Date for such interest installment, which shall
be the 15th day (whether or not a Business Day) of the last month of each
quarter, provided that if all of the Debentures (as defined below) are then held
by SJG Capital Trust (the "Trust") or the Debentures are held in book-entry-only
form, the Regular Record Date shall be the close of business on the Business Day
next preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may be paid to the Person in whose name
this Debenture is registered at the close of business on a Special Record Date
to be fixed by the Trustee (as defined below) for the payment of such defaulted
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interest, notice whereof shall be given to the Holders of the Debentures not
less than 7 days prior to such Special Record Date, as more fully provided in
the Indenture.
Payment of the principal of and interest on this Debenture will be
made in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. Payments of
interest on an Interest Payment Date will be made by check mailed to the Holder
hereof at the address shown in the Register or, at the option of the Holder
hereof, to such other place in the United States of America as the Holder hereof
shall designate to the Trustee in writing. At the request of a Holder of at
least $10,000,000 aggregate principal amount of Debentures, interest on such
Debentures will be payable by wire transfer within the continental United States
in immediately available funds to the bank account number specified in writing
by such Holder to the Registrar prior to the Regular Record Date.
The principal amount hereof and any interest due on the Stated
Maturity Date or a Redemption Date (other than an Interest Payment Date) will be
paid only upon surrender of this Debenture at the principal corporate office of
The Bank of New York, Paying Agent in New York, or at such other office or
agency of the Paying Agent as the Company shall designate by written notice to
the Holder of this Debenture.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. The Holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. The Holder of this Debenture, by his acceptance
hereof, hereby waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives reliance
by each such holder upon said provisions.
This Debenture is one of the duly authorized Debentures of the Company
(herein sometimes referred to as the "Debentures"), specified in the Indenture,
limited in aggregate principal amount to [$36,082,475], issued under
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and pursuant to an Indenture dated as [ ], 1997 (the "Indenture") executed and
delivered between the Company and The Bank of New York, as trustee (the
"Trustee"). The Debentures are initially being issued to the Trust, to be held
on behalf of the Trust by its property trustee (the "Property Trustee").
Concurrently with the issuance of the Debentures, the Trust is issuing its trust
securities, representing undivided beneficial interests in the assets of the
Trust and having an aggregate liquidation amount equal to the principal amount
of the Debentures, including the Trust's [ ]% Preferred Securities (the
"Preferred Securities"). Reference is made to the Indenture for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and Holders of the Debentures. Each term
used in this Debenture which is defined in the Indenture and not defined herein
shall have the meaning assigned to it in the Indenture.
At the option of the Company, the Debentures are redeemable prior to
maturity (i) at any time on or after __________, [2002], in whole or in part,
and (ii) if a Special Event shall occur and be continuing, in whole (but not in
part) within 90 days following the occurrence of such Special Event, in each
case at 100% of the principal amount thereof plus accrued interest to the
Redemption Date. A "Special Event" shall mean either a "Tax Event" or an
"Investment Company Event." "Tax Event" shall mean that the Company shall have
received an opinion of nationally recognized independent tax counsel (which must
be acceptable to the Property Trustee of the Trust) experienced in such matters
to the effect that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein affecting taxation, or as a result of any official administrative
pronouncement, administrative action, or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement, administrative action or decision is announced or taken on
or after the date of original issuance of Preferred Securities, there is more
than an insubstantial risk that (i) the Trust is, or will be within 90 days of
the date thereof, subject to United States Federal income tax with respect to
interest received on the Debentures, (ii) interest payable by the Company to the
Trust on the Debentures is not or will not be within 90 days of the date thereof
deductible for United States Federal income tax purposes or (iii) the Trust is,
or will be within 90 days of the date thereof, subject to more than a de minimis
amount of other taxes, duties, assessments or other governmental charges.
"Investment Company Event" shall mean
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the occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law") to the effect that
the Trust is or will be considered an "investment company" that is required to
be registered under the Investment Company Act of 1940, as amended, which Change
in 1940 Act Law becomes effective on or after the date of original issuance of
the Preferred Securities.
At least 30 days but not more than 60 days before the Redemption Date,
the Trustee shall mail or caused to be mailed a notice of redemption by first-
class mail, postage prepaid, to each Holder of Debentures to be redeemed.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancelation hereof. In case an Event of
Default with respect to the Debentures occurs and is continuing, the principal
of and interest on the Debentures may (and, in certain circumstances, shall) be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Debenture upon compliance by the Company with
certain conditions set forth therein.
Subject to certain exceptions in the Indenture which require the
consent of every Holder, the Company and the Trustee may amend the Indenture or
may waive future compliance by the Company with any provisions of the Indenture,
with the consent of the Holders of at least a majority in aggregate principal
amount of the Debentures, provided that if the Debentures are held by the Trust,
no such amendment or waiver that adversely affects the holders of the Preferred
Securities shall be effective without the prior consent of the holders of at
least a majority in aggregate liquidation amount of the outstanding Preferred
Securities. Subject to certain exceptions in the Indenture, without the consent
of any Debentureholder, the Company and the Trustee may amend the Indenture to
cure any ambiguity, defect or inconsistency, to bind a successor to the
obligations of the Indenture, to provide for uncertificated Debentures in
addition to certificated Debentures, to comply with any requirements of the
Debentures and the Securities and Exchange Commission in connection with the
qualification of the Indenture under the TIA, or to make any change that,
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in the reasonable judgment of the Company, does not adversely affect the rights
of any Debentureholder. Amendments bind all Holders and subsequent Holders.
No reference herein to the Indenture and no provision of this
Debenture or the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Debenture at the time and place and at the rate and in the money herein
prescribed.
So long as no Event of Default with respect to the Debentures has
occurred and is continuing, the Company shall have the right at any time and
from time to time to extend the interest payment period of the Debentures for up
to 20 consecutive quarters (the "Extension Period"), provided that no Extension
Period shall extend beyond the Stated Maturity Date or Redemption Date of any
Debenture. At the end of the Extension Period, the Company shall pay all
interest then accrued and unpaid (together with interest thereon at the rate
specified for the Debentures, compounded quarterly, to the extent that payment
of such interest is enforceable under applicable law). During such Extension
Period, the Company may not declare or pay any dividend on, redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock.
Prior to the termination of any such Extension Period, the Company may further
extend such Extension Period, provided that such Extension Period, together with
all such previous and further extensions, shall not exceed 20 consecutive
quarters and shall not extend beyond the Stated Maturity Date or Redemption Date
of any Debenture. At the termination of any such Extension Period and upon the
payment of all amounts then due, the Company may elect to begin a new Extension
Period, subject to the foregoing restrictions.
Debentures are issuable only in registered form without coupons in
denominations of $25 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, this Debenture
is exchangeable for a like aggregate principal amount of Debentures of a
different authorized denomination, as requested by the Holder surrendering the
same.
As provided in the Indenture and subject to certain limitations
therein set forth, this Debenture is transferable by the Holder hereof upon
surrender of this Debenture for registration of transfer at the office or agency
of the Registrar accompanied by a written instrument or instruments of transfer
inform satisfactory to the Registrar duly executed by the Holder hereof or his
attorney
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duly authorized in writing, and thereupon one or more new Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to presentment for registration of transfer of this Debenture,
the Company, the Trustee, any Paying Agent and any Registrar may deem and treat
the Holder hereof as the absolute owner hereof (whether or not this Debenture
shall be overdue and notwithstanding any notice of ownership or writing hereon
made by anyone other than the Registrar) for the purpose of receiving payment of
or on account of the principal hereof and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any Paying Agent nor any
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder officer or director, past, present or future, as such,
of the Company or of any predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
This Debenture shall not be valid until an authorized signatory of the
Trustee manually signs and dates the Trustee's Certificate of Authentication
below.
IN WITNESS WHEREOF, the Company has caused this Debenture to be signed
manually or by facsimile by its duly
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authorized officers and a facsimile of its corporate seal to be affixed hereto
or imprinted hereon.
SOUTH JERSEY GAS COMPANY,
[SEAL]
by___________________________
Name:
Title:
Attest:___________________________
(Assistant) Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures referred to in the within-mentioned
Indenture.
The Bank of New York, as Trustee
By:__________________________
Authorized Signatory
Dated:_______________________
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ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign
and transfer this Debenture to:
________________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________ agent to transfer this Debenture on
the books of the Register. The agent may substitute another to act for him.
Dated:_________________________
Signature:_____________________
(Sign exactly as your name appears on the other
side of this Debenture)
Signature Guaranty: ____________________
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