PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
AND
WACHOVIA BANK, NATIONAL ASSOCIATION,
Trustee
-----------------
First Supplemental Indenture
Dated as of September 10, 2002
To
Indenture
Dated as of November 1, 1998
-----------------
Senior Deferrable Notes due 2007
FIRST SUPPLEMENTAL INDENTURE, dated as of September 10, 2002 (this
"First Supplemental Indenture"), between PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED, a New Jersey corporation (the "Company"), having its principal
office at 00 Xxxx Xxxxx, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000, and WACHOVIA
BANK, NATIONAL ASSOCIATION (formerly known as First Union National Bank), a
banking association organized under the laws of the United States, as Trustee
(the "Trustee"), under the Indenture, dated as of November 1, 1998, between the
Company and the Trustee (the "Indenture").
WHEREAS, the Company has executed and delivered the Indenture to the
Trustee to provide for the issuance from time to time of its senior debt
securities evidencing its unsecured unsubordinated indebtedness (the
"Securities"), to be issued in one or more series as provided in the Indenture.
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a series of Securities, to be known as its
"Senior Deferrable Notes due 2007" (herein called the "Notes"), in this First
Supplemental Indenture.
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid, binding and enforceable agreement of the Company, and to make the Notes,
when executed, authenticated and delivered by the Company, the valid, binding
and enforceable obligations of the Company have been done and the execution and
delivery of the First Supplemental Indenture has been duly authorized in all
material respects.
WHEREAS, PSEG Funding Trust I, a Delaware statutory trust (the "Trust"),
will issue $460,000,000 in aggregate liquidation amount of its preferred
securities (the "Preferred Securities") and, in connection therewith, the
Company has agreed to purchase $14,226,850 in aggregate liquidation amount of
the Trust's common securities (the "Common Securities"), each representing an
undivided beneficial interest in the assets of the Trust, and the Trust proposes
to invest the proceeds from such issuances in $474,226,850 aggregate principal
amount of the Notes.
NOW, THEREFORE, for and in consideration of the purchase of the Notes by
the Trust, it is mutually agreed, for the equal and proportionate benefit of the
Trust and any other future holders of the Notes (the "Holders"), as follows:
ARTICLE ONE
DEFINITIONS
Section 101. Definition of Terms. Unless the context otherwise requires:
(a) any term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(b) any term not defined herein that is defined in the Indenture has the
same meaning when used in this First Supplemental Indenture;
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(c) any term not defined herein or in the Indenture that is defined in
Amended and Restated Trust Agreement, dated as of September 10, 2002 (the
"Declaration"), of the Trust has the same meaning when used in this First
Supplemental Indenture;
(d) the term "Business Day," as used in the Indenture and this First
Supplemental Indenture with respect to the Notes, means any day other than a
Saturday or Sunday, or any other day on which banking institutions in The City
of New York are permitted or required by any applicable law to close.
ARTICLE TWO
TERMS AND ISSUANCE OF THE NOTES
Section 201. Issue of Notes. A series of Securities which shall be
designated the "Senior Deferrable Notes due 2007" shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of the Indenture
and this First Supplemental Indenture (including the forms of Notes set forth as
Exhibits A, B and C hereto). The Notes will constitute unsecured and
unsubordinated indebtedness of the Company and will rank equally with all other
existing or future unsecured and unsubordinated indebtedness of the Company. The
aggregate principal amount of Notes of the series created hereby which may be
authenticated and delivered under the Indenture shall not, except as permitted
by the provisions of the Indenture, exceed $474,226,850. The Notes shall be
initially issued in certificated form to the Trust (the "Initial Notes") and
shall be substantially in the Form of Exhibit A hereto. The Notes will be issued
in denominations of $50 and integral multiples thereof. The terms of such Notes
are herein incorporated by reference and made part of this First Supplemental
Indenture.
Section 202. Maturity. Unless a Tax Event Redemption occurs or the Notes
are repurchased by the Company at the Holders' option following a Failed
Secondary Remarketing as described in Section 205(b), the entire principal
amount of the Notes will mature and become due and payable, together with any
accrued and unpaid interest thereon, on November 16, 2007 (the "Maturity Date").
Section 203. Liquidation or Dissolution of Trust. In the event of an
involuntary or voluntary liquidation and dissolution of the Trust (other than in
connection with a Tax Event Redemption):
(a) With respect to Separate Preferred Securities held in book-entry
form, Initial Notes in an aggregate principal amount equal to the aggregate
liquidation amount of such Separate Preferred Securities may be presented to the
Trustee by the Property Trustee, along with written certification by the
Property Trustee that the Separate Preferred Securities are held in book-entry
form, in exchange for a global Security (a "Global Note") in the form of Exhibit
B in an aggregate principal amount equal to the aggregate amount of Initial
Notes so presented to the Trustee by the Property Trustee. The securities
depositary for the Global Note will be The Depository Trust Company (the
"Depositary"). The Global Note will be registered in the name of the Depositary
or its nominee, and delivered by the Trustee to the Depositary or a custodian
appointed by the Depositary for crediting to the accounts of its participants
pursuant to the instructions of the Property Trustee. The Company, upon any such
presentation, shall
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execute a Global Note in such aggregate principal amount and deliver the same to
the Trustee for authentication and delivery in accordance with the Indenture and
this First Supplemental Indenture. Payments on the Notes issued as a Global Note
will be made to the Depositary or its nominee.
(b) With respect to Pledged Preferred Securities, Initial Notes may
be presented to the Trustee by the Property Trustee, along with written
identification by the Property Trustee of the certificate or certificates
representing such Pledged Preferred Securities and of the liquidation amount
thereof, in exchange for a certificated Security (a "Certificated Note") in the
form of Exhibit C representing a Pledged Note (as such term is defined in the
Pledge Agreement) in an aggregate principal amount equal to the aggregate amount
of Initial Notes so presented to the Trustee by the Property Trustee. The
Pledged Notes shall be registered in the name of the Purchase Contract Agent as
attorney in fact for the holders of the Corporate Units and delivered by the
Trustee to the Collateral Agent for credit to the Collateral Account (as such
term is defined in the Purchase Contract Agreement) pursuant to the instructions
of the Property Trustee. The Company, upon any such presentation, shall execute
a Certificated Note in such aggregate principal amount and deliver the same to
the Trustee for authentication and delivery in accordance with the Indenture and
this First Supplemental Indenture.
(c) Each such Global Note and Pledged Note shall represent such
number of the Outstanding Notes as shall be from time to time endorsed thereon,
which numbers may be increased or decreased, as applicable, to reflect, in
connection with the creation of Treasury Units and the recreation of Corporate
Units, transfers between Pledged Notes and Separate Notes (as such term is
defined in the Pledge Agreement). Any such increase or decrease in the aggregate
number of Notes represented by (i) a Pledged Note shall be made by the
Collateral Agent and (ii) a Global Note shall be made by the Trustee, as
custodian of the Global Notes, in each case upon the instructions of the
Collateral Agent given pursuant to Article 4 of the Pledge Agreement.
Section 204. Interest.
(a) Subject to Section 204(c) below, each Note will bear interest at
the rate of 6.25% per annum from September 10, 2002, payable quarterly in
arrears on February 16, May 16, August 16 and November 16 of each year,
commencing November 16, 2002; provided that, following the Reset Effective Date,
interest shall be payable semi-annually in arrears on each May 16 and November
16, commencing November 16, 2005, in the event that the Notes are successfully
remarketed on the Initial Remarketing Date, or May 16, 2006, in the event that
the Notes are successfully remarketed on the Secondary Remarketing Date.
If the Reset Effective Date is the Initial Reset Date and such date
is not otherwise a scheduled Interest Payment Date, an interest payment shall be
payable on the Initial Reset Date equal to the amount of interest accrued on the
Notes from the most recent Interest Payment Date to but excluding the Initial
Reset Date. In such case, interest payable on the Interest Payment Date next
following the Initial Reset Date shall equal the amount of interest accrued from
and including the Initial Reset Date to but excluding such Interest Payment
Date.
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Each date on which interest is payable on the Notes in accordance
with this Section 204(a) is referred to as an "Interest Payment Date."
(b) The Regular Record Dates for the payment of interest on the
Notes on any Interest Payment Date shall be (i) as long as the Notes are
represented by Initial Notes or Certificated Notes (whether issued pursuant to
Section 203(b) or otherwise in accordance with the terms of the Indenture), the
fifteenth Business Day prior to each Interest Payment Date or (ii) if the Notes
are issued pursuant to Section 203(a) above, the Business Day preceding each
Interest Payment Date.
(c) The interest rate on the Notes outstanding on and after the
Initial Remarketing Date will be reset to the Reset Rate, and interest will
accrue at the Reset Rate from and including the Initial Reset Date except in the
event of a Failed Initial Remarketing. In the event of a Failed Initial
Remarketing, the interest rate on the Notes outstanding on and after the
Secondary Remarketing Date will be reset to the Reset Rate, and interest will
accrue at the Reset Rate from and including the Purchase Contract Settlement
Date, except that in the event of a Failed Secondary Remarketing, the interest
rate on the Notes will not be reset and the scheduled Interest Payment Dates
shall remain February 16, May 16, August 16 and November 16. On the applicable
Reset Announcement Date, the applicable Reset Spread and the Appropriate
Benchmark Treasury or Two-Year Benchmark Treasury, as applicable, will be
announced by the Company. On the Business Day immediately following such Reset
Announcement Date, the Holders of Notes will be notified of such Reset Spread
and Appropriate Benchmark Treasury or Two-Year Benchmark Treasury, as
applicable, by the Company. Such notice shall be sufficiently given to such
Holders of Notes if published in a newspaper that is published each business day
in the English language of general circulation in The City of New York, which is
expected to be The Wall Street Journal.
(d) Not later than seven calendar days nor more than 15 calendar
days immediately preceding the Initial Remarketing Date or the Secondary
Remarketing Date, as the case may be, the Company will request that the
Depositary or its nominee (or any successor Depositary or its nominee) notify
the Holders of Notes of the Initial Remarketing or the Secondary Remarketing, as
the case may be, and, in the case of a Secondary Remarketing, the procedures to
be followed by such holders of Notes wishing to settle the related Purchase
Contracts with separate cash on the Business Day immediately preceding the
Purchase Contract Settlement Date.
(e) The amount of interest payable on the Notes for any period will
be computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which interest is payable on the Notes is not a Business Day,
then payment of the interest payable on such date will be made on the next day
that is a Business Day (and without interest or other payment in respect of any
such delay), except that, if such Business Day is in the next calendar year,
then such payment will be made on the preceding Business Day.
Section 205. Redemption and Repurchase.
(a) If a Tax Event occurs and is continuing, the Company may, at its
option and upon not less than 30 nor more than 60 days' notice to the Holders of
the Notes,
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redeem the Notes in whole (but not in part) at a price per Note equal to the
Redemption Amount, plus any accrued and unpaid interest (including compound
interest, if any) to the Tax Event Redemption Date (as defined below). If the
Company elects to redeem the Notes following the occurrence of a Tax Event, (i)
the Company shall certify in writing to the Trustee the occurrence of the Tax
Event and the applicable Redemption Amount; (ii) the aggregate Redemption
Amount, plus any accrued and unpaid interest (including compound interest, if
any) to the Tax Event Redemption Date, shall be paid prior to 12:00 noon, New
York City time, on the date of redemption (the "Tax Event Redemption Date") by
check or wire transfer in immediately available funds at such place and to such
account as may be designated by each such Holder; (iii) the Company shall
appoint a Quotation Agent to assemble (or, in the event of a Tax Event
Redemption Date following a successful Remarketing) to ascertain the purchase
price of the Treasury Portfolio in consultation with the Company; and (iv) such
redemption shall otherwise be in accordance with the provisions of Article 11 of
the Indenture.
(b) If a Failed Secondary Remarketing has occurred, holders of Notes
who hold such Notes following the Purchase Contract Settlement Date will have
the right to deliver the Notes to the Company for repurchase on December 1, 2005
(the "Note Repurchase Date"), upon at least three Business Days prior notice, at
a price per Note equal to the principal amount of such Notes plus any accrued
and unpaid interest (the "Note Put Price").
(c) In order for the Notes to be repurchased on the Note Repurchase
Date, the Trustee must receive on or prior to 5:00 p.m. New York City time on
the third Business Day immediately preceding the Note Repurchase Date, at its
Corporate Trust Office or at an office or agency maintained by the Company in
the Borough of Manhattan, The City of New York, the Notes to be repurchased with
the form entitled "Option to Elect Repurchase" on the reverse of or otherwise
accompanying such Notes duly completed. Any such notice received by the Trustee
shall be irrevocable. All questions as to the validity, eligibility (including
time of receipt) and acceptance of the Notes for repayment shall be determined
by the Company, whose determination shall be final and binding.
(d) Payment of the Note Put Price shall be made through the Trustee,
subject to the Trustee's receipt of payment from the Company in accordance with
the terms of the Indenture, no later than 12:00 noon, New York City time, on the
Note Repurchase Date, and to such account as may be designated. Neither the
Trustee nor the Company will be required to register or cause to be registered
the transfer of any Note for which repayment has been elected.
(e) Unless the Company defaults in its obligation to pay the
Redemption Amount, plus any accrued and unpaid interest including compound
interest or the Note Put Price, on and after the Tax Event Redemption Date or
the Note Repurchase Date, as the case may be, interest shall cease to accrue on
the Notes so redeemed.
(f) Except as provided in Section 205(a), the Company will have no
right to redeem the Notes.
(g) The Notes will not be subject to a sinking fund provision.
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(h) The Company will have no right to satisfy and discharge any of
its obligations on the Notes by making, or causing to be made, any deposit of
money or Government Obligations provided for by Article Fourteen of the
Indenture.
Section 206. Events of Default. So long as the Notes are held by the
Property Trustee, it shall be an Event of Default with respect to the Notes if
the Trust shall have voluntarily or involuntarily dissolved, wound up its
business or otherwise terminated its existence except in connection with (i) the
distribution of the Notes held by the Property Trustee to the holders of the
Preferred Securities and Common Securities in liquidation of their interests in
the Trust; (ii) the redemption of all of the outstanding Preferred Securities
and Common Securities; or (iii) a consolidation, conversion, amalgamation,
merger or other transaction involving the Trust that is permitted under Article
IX of the Declaration.
Section 207. Extension of Interest Payment Period.
(a) The Company shall have the right at any time and from time to
time, so long as no Event of Default with respect to the Notes has occurred and
is continuing, to defer payments of interest by extending the interest payment
period of such Notes for a period not extending beyond the Maturity Date (an
"Extension Period"), during which Extension Period no interest shall be due and
payable; provided however, upon no less than two Business Days' notice to the
Remarketing Agent prior to the Initial Remarketing Date or the Secondary
Remarketing Date, as the case may be, the Company may elect that payments of
interest will not be deferrable after the Reset Effective Date. To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of the extension of the interest payment period pursuant to this Section
207, will accrue (i) in the event of an Extension Period prior to the Reset
Effective Date or in the event of a Failed Secondary Remarketing, at the rate of
10.25% per annum, and (ii) in the event of an Extension Period, if any,
following the Reset Effective Date, at the Reset Rate per annum, in either case
until such Deferred Interest is paid. Deferred Interest shall be compounded
("Compounded Interest") (x) quarterly for each quarter of such Extension Period
prior to the Reset Effective Date, (y) quarterly for each quarter of such
Extension Period prior to November 16, 2007 in the event of a Failed Secondary
Remarketing, or (z) semiannually for each semiannual period of such Extension
Period, if any, subsequent to the Reset Effective Date. At the end of such
Extension Period, the Company shall pay all interest accrued and unpaid on the
Notes and Compounded Interest (together, "Deferred Interest") that shall be
payable to the Holders of the Notes in whose names the Notes are registered in
the Security Register on the first Regular Record Date after the end of the
Extension Period. Prior to the expiration of any Extension Period, the Company
may further extend such period, provided that such period together with all such
previous and further extensions thereof shall not extend beyond the Maturity
Date. Upon termination of any Extension Period and the payment of all Deferred
Interest then due, the Company may commence a new Extension Period, provided
that such Extension Period, together with all extensions thereof, may not extend
beyond the Maturity Date. No interest shall be due and payable during an
Extension Period except at the end thereof, but the Company, at its option, may
prepay on any Interest Payment Date all or any portion of the interest accrued
during the then elapsed portion of an Extension Period.
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(b) In the event of a Failed Secondary Remarketing, the Company
shall pay all Deferred Interest on the Purchase Contract Settlement Date to the
Holders of record as of the applicable Regular Record Date.
(c) The Company's deferral of interest payments during an Extension
Period shall not constitute an Event of Default pursuant to Section 501(1) of
the Indenture.
(d) All Deferred Interest shall be deemed paid by the Company upon
the occurrence of the Reset Effective Date.
Section 208. Notice of Extension. The Company shall give written notice to
the Trustee (and the Trustee shall give notice thereof to Holders of Notes) of
its election of any Extension Period (or any further extension thereof) at least
ten Business Days before the earlier of (i) the date on which interest on the
Notes would have been payable except for the election to begin or extend the
Extension Period (whether or not an Interest Payment Date), (ii) the date the
Trustee is required to give notice to any securities exchange or to Holders of
Notes of such date on which interest on the Notes would have been payable, or
(iii) the Regular Record Date on which interest on the Notes would have been
payable.
Section 209. Place of Payment. The Place of Payment will be initially the
principal corporate trust office of the Trustee which, at the date hereof, is
located at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
ARTICLE THREE
EXPENSES
Section 301. Payment of Expenses. In connection with the offering, sale
and issuance of the Notes to the Trust in connection with the sale of the
Preferred Securities and Common Securities by the Trust, the Company will pay
for all costs and expenses relating to the offering, sale and issuance of the
Notes, including compensation of the Trustee under the Indenture in accordance
with the provisions of Section 606 of the Indenture.
ARTICLE FOUR
COVENANTS
Section 401. Covenants during an Extension Period or in the Event of an
Event of Default. During an Extension Period or if an Event of Default with
respect to the Notes occurs and is continuing, the Company shall not, and shall
not permit any of its subsidiaries to:
(a) redeem, purchase, acquire, or make a liquidation payment with
respect to, any of its capital stock;
(b) declare or pay any dividends or distributions on its capital
stock;
(c) make any distribution on any trust preferred security that ranks
pari passu with the Preferred Securities or pay interest on senior debt with
similar deferral provisions to the Notes; or
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(d) make any payment of principal, interest or premium, if any, on
or repay, repurchase or redeem any debt securities issued by the Company that
rank subordinate in right of payment to, the Notes or make any guarantee
payments with respect to any guarantee by the Company of the debt of any
subsidiary of the Company if such guarantee ranks subordinate in right of
payment to, the Notes.
Notwithstanding the foregoing, the Company and any of its subsidiaries may
(i) purchase or acquire capital stock of the Company or such subsidiary in
connection with the satisfaction by the Company or such subsidiary of its
obligations under any employee or director compensation or benefit plans, under
its direct stock purchase and dividend reinvestment plan or pursuant to any
contract or security outstanding on the first day of any such Extension Period
or Event of Default, as the case may be, requiring the Company or such
subsidiary to purchase capital stock of the Company or such subsidiary, (ii)
reclassify the Company's or such subsidiary's capital stock or exchange or
convert one class or series of the Company's or such subsidiary's capital stock
for another class or series of the Company's or such subsidiary's capital stock,
(iii) purchase fractional interests in shares of the Company's or such
subsidiary's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (iv) redeem or
repurchase any rights pursuant to a rights agreement or (vi) make payments under
the Guarantee.
Section 402. Additional Covenants Relating to the Trust. As long as the
Preferred Securities remain outstanding, the Company
(a) maintain, directly or indirectly, 100% ownership of the Common
Securities;
(b) cause the Trust to remain a statutory trust and not to
voluntarily dissolve, wind up, liquidate or be terminated, except as permitted
by the Declaration;
(c) use its commercially reasonable efforts to ensure that the Trust
will not be an "investment company" required to be registered under the 1940
Act;
(d) not take any action that would be reasonably likely to cause the
Trust to be classified as an association, a partnership or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes; and
(e) pay all of the debts and obligations of the Trust (other than
with respect to the securities issued by the Trust) and all costs and expenses
of the Trust (including, but not limited to, all costs and expenses relating to
the organization of the Trust, the fees and expenses of the Property Trustee,
the Delaware Trustee and the Administrative Trustees and all costs and expenses
relating to the operation of the Trust) and any and all taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed on the Trust by the United States, or any other taxing authority,
so that the net amounts received and retained by the Trust after paying such
expenses will be equal to the amounts the Trust would have received had no
debts, obligations, costs, expenses, taxes, duties, assessments or governmental
charges been incurred by or imposed on the Trust.
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ARTICLE FIVE
ORIGINAL ISSUE OF NOTES
Section 501. Original Issue of Notes. Notes in an aggregate principal
amount of up to $474,226,850 may, upon execution of this First Supplemental
Indenture, be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Notes upon receipt of a Company Order for authentication and delivery, without
any further action by the Company.
ARTICLE SIX
RIGHTS OF HOLDERS OF PREFERRED SECURITIES
Section 601. Preferred Security Holders' Rights. If the Property Trustee
fails to enforce its rights under the Notes in accordance with Section 507 of
the Indenture after a holder of Preferred Securities has made a written request,
the holder of Preferred Securities may, to the fullest extent permitted by law,
institute a legal proceeding directly against the Company in accordance with
Section 507 of the Indenture to enforce the Property Trustee's rights under the
Indenture without first instituting any legal proceeding against the Property
Trustee or any other Person.
Section 602. Direct Action. Notwithstanding any other provision of the
Indenture, for as long as any Preferred Securities remain outstanding, to the
fullest extent permitted by law, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal on the Notes on the date such interest or principal is
otherwise payable (or in the case of a Tax Event Redemption or a repurchase of
the Notes pursuant to Section 205(b), the Tax Event Redemption Date or the
Repurchase Date), then a holder of Preferred Securities may institute a
proceeding directly against the Company (a "Direct Action") to enforce payment
to such holder of the principal or interest on Notes having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder.
Section 603. Payments Pursuant to Direct Actions. The Company will have
the right to set off against its obligations to the Trust, as Holder of the
Notes, any payment made to a holder of Preferred Securities in connection with a
Direct Action.
Section 604. Modifications. So long as any Preferred Securities remain
outstanding, (i) no amendment to this First Supplemental Indenture or the
Indenture shall be made that adversely affects the holders of the Preferred
Securities in any material respect, and no termination of this First
Supplemental Indenture or the Indenture shall occur, and no waiver of any Event
of Default or compliance with any covenant under this First Supplemental
Indenture or the Indenture shall be effective, without the prior consent of the
holders of at least a majority in aggregate Liquidation Amount of the
Outstanding Preferred Securities unless and until the principal of the Notes and
all accrued and unpaid interest thereon have been paid in full, and (ii) no
amendment shall be made to this Article Six of this First Supplemental Indenture
that would impair the rights of the holders of the Preferred Securities without
the prior consent of the holders of each Outstanding Preferred Security unless
and until the principal of the Notes and all accrued and unpaid interest thereon
have been paid in full.
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ARTICLE SEVEN
REMARKETING
Section 701. Effectiveness of this Article. Upon a distribution of the
Notes upon the liquidation and dissolution of the Trust which occurs prior to
the Initial Remarketing Date or, in the event of a Failed Initial Remarketing,
the Secondary Remarketing Date, the Notes shall be remarketed in accordance with
the procedures (the "Remarketing Procedures") relating to Remarketing set forth
in the Declaration and the Remarketing Agreement. In such case, the Notes shall
be remarketed in accordance with the Remarketing Procedures as and to the extent
that they were Preferred Securities and all references in the Remarketing
Procedures to (i) the Preferred Securities shall be read as references to the
Notes and (ii) the Property Trustee shall be read as references to the Indenture
Trustee, unless the context requires otherwise. Until such a distribution, or if
such distribution occurs after the Remarketing of the Preferred Securities
pursuant to the Declaration or the Purchase Contract Settlement Date, this
Article Seven will have no effect.
ARTICLE EIGHT
ACCELERATION OF MATURITY
Section 801. Automatic Acceleration. If an Event of Default with respect
to the Notes specified in clause (5) or (6) of Section 501 of the Indenture
occurs and is continuing, the principal of the Notes shall become due and
payable immediately, without any declaration, notice or other act on the part of
the Trustee or any holder thereof.
ARTICLE NINE
MISCELLANEOUS
Section 901. Execution of Supplemental Indenture. This First Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Indenture, and, as provided in the Indenture, this First Supplemental Indenture
forms a part thereof.
Section 902. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof or of the Indenture
which is required to be included in this First Supplemental Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
Section 903. Construction. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof. Unless otherwise
indicated herein, a reference to a Section or Article is to a Section or Article
of this First Supplemental Indenture.
Section 904. Successors and Assigns. All covenants and agreements in this
First Supplemental Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
Section 905. Separability Clause. In case any provision in this First
Supplemental Indenture or in the Notes 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.
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Section 906. Benefits of First Supplemental Indenture. Nothing in this
First Supplemental Indenture or in the Notes, express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder and the
holders, any benefit or any legal or equitable right, remedy or claim under this
First Supplemental Indenture.
Section 907. Recitals. The recitals contained in this First Supplemental
Indenture shall be taken as statements of the Company, and the Trustee assumes
no responsibility for their correctness.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
By:
-------------------------------------
Name:
Title:
[SEAL]
Attest:
----------------------------------------
Assistant Secretary
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:
-------------------------------------
Name:
Title:
Attest:
----------------------------------------
Assistant Secretary
EXHIBIT A
[FORM OF FACE OF NOTE]
REGISTERED
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
SENIOR DEFERRABLE NOTE DUE 2007
No. R- $
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED, a corporation duly organized
and existing under the laws of the State of New Jersey (herein called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to herein), for value received, hereby promises to pay
Wachovia Bank, National Association, as Property Trustee for PSEG Funding Trust
I, or registered assigns, the principal sum of $474,226,850 (Four Hundred
Seventy Four Million, Two Hundred Twenty Six Thousand, Eight Hundred and Fifty
Dollars) on November 16, 2007, and to pay interest on said principal sum from
September 10, 2002, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 6.25% per annum to
but excluding the Reset Effective Date, and at the Reset Rate thereafter (which
rate shall not be higher than the maximum rate permitted by law) or, in the
event of a Failed Secondary Remarketing, to but excluding November 16, 2007,
until the principal hereof shall have become due and payable. The Company shall
pay interest on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at 10.25% per annum to
but excluding the Reset Effective Date, and at the Reset Rate thereafter,
compounded quarterly (prior to the Reset Effective Date) or semiannually (on and
after the Reset Effective Date). Interest shall be payable quarterly in arrears
on February 16, May 16, August 16 and November 16 of each year, commencing
November 16, 2002; provided that, following the Reset Effective Date, interest
shall be payable semi-annually in arrears on each May 16 and November 16,
commencing November 16, 2005 (in the event that the Reset Effective Date is also
the Initial Reset Date) or May 16, 2006 (in the event that the Reset Effective
Date is also the Purchase Contract Settlement Date). If the Reset Effective Date
is the Initial Reset Date and such date is not otherwise a scheduled Interest
Payment Date, an interest payment shall be payable on the Initial Reset Date
equal to the amount of interest accrued on the Notes from the most recent
Interest Payment Date to but excluding the Initial Reset Date. In such case,
interest payable on the Interest Payment Date next following the Initial Reset
Date shall equal the amount of interest accrued from and including the Initial
Reset
A-1
Date to but excluding such Interest Payment Date. Each date on which interest is
payable hereon is referred to herein as an "Interest Payment Date." The amount
of interest payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable is not a Business Day, then payment of the interest payable on such date
will be made on the next day that is a Business Day (and without any interest or
other payment in respect of such delay), except that, if such Business Day is in
the next calendar year, then such payment will be made on the preceding Business
Day. The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred to
herein, be paid to the Holder in whose name this Note (or one or more
Predecessor Notes, as defined in said Indenture) is registered at the close of
business on the Regular Record Date for such interest installment, which shall
be the close of business on the Business Day 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 Holder in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date to be fixed by the Trustee referred to on the reverse side hereof for the
payment of such defaulted interest, notice whereof shall be given to the Holders
of this Note not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Note may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
Payment of the principal of and premium, if any, and interest on this Note
will be made at the office or agency of the Trustee maintained for that purpose
in such coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts. The Company may
pay principal and interest by check payable in such money mailed to the Holder's
registered address or by wire transfer to a dollar account designated by the
Holder.
Interest on this Note is deferrable, at the election of the Company, in
accordance with the terms of the First Supplemental Indenture, dated as of
September 10, 2002 (the "First Supplemental Indenture"), between the Company and
Wachovia Bank, National Association, as Trustee. Any deferred interest shall
accrue interest at the rate set forth in the First Supplemental Indenture.
This Note is, to the extent provided in the Indenture, unsecured and will
rank in right of payment equally with all other unsecured and unsubordinated
obligations of the Company.
Additional provisions of this Note are set forth on the reverse side
hereof, and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
Dated: September 10, 2002 By:
-------------------------------------
Name:
Title:
[SEAL]
Attest:
---------------------------------
Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: September 10, 2002 WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:
-------------------------------------
Authorized Signatory
A-3
(FORM OF REVERSE OF NOTE)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
SENIOR DEFERRABLE NOTE DUE 2007
This Note is one of a duly authorized series of Securities of the Company
(herein called the "Notes") issued under an Indenture, dated as of November 1,
1998, as supplemented by the First Supplemental Indenture (together, as amended
or supplemented from time to time, the "Indenture"), between the Company and
Wachovia Bank, National Association (formerly known as First Union National
Bank), as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof, limited
in aggregate principal amount to $474,226,850.
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note is not subject to any sinking fund, nor may this Note be
redeemed at the option of the Company prior to the Maturity Date except upon the
occurrence of a Tax Event. In addition, the Notes shall be subject to repurchase
by the Company following a Failed Secondary Remarketing as described below.
The indebtedness of this Note will not be subject to defeasance pursuant
to the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Company, the Trust, the Holders of the Notes, and holders of Preferred
Securities and Common Securities agree to treat the Notes as indebtedness for
all United States federal income tax purposes.
If a Tax Event occurs and is continuing, the Company may, at its option
and upon not less than 30 nor more than 60 days' notice to the Holders of the
Notes, redeem the Notes in whole (but not in part) at a price per Note equal to
the Redemption Amount plus any accrued and unpaid interest (including compound
interest, if any) to the Tax Event Redemption Date. The Redemption Amount, plus
any accrued and unpaid interest (including compound interest, if any) to the Tax
Event Redemption Date, shall be paid prior to 12:00 noon, New York City time, on
the Tax Event Redemption Date, by check or wire transfer in immediately
available funds at such place and to such account as may be designated by each
such Holder.
A-4
If a Failed Secondary Remarketing has occurred, each Holder of Securities
will have the right to deliver the Notes to the Company for repurchase at a
price per Note equal to the Note Put Price. The Holder shall give written notice
of such election not less than three Business Days prior to December 1, 2005 and
the aggregate Put Price shall be paid prior to 12:00 noon, New York City time,
on December 1, 2005 by check or wire transfer in immediately available funds at
such place and to such account as may be designated by each such Holder.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities at the time of each series to be affected (voting
as a class). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of each
series at the time, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of a Note of the series of which this Note is a part is
registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company to be maintained
by the Trustee for that purpose in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
the form attached hereto and by such other documents satisfactory to the Company
and the Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. The Security Registrar
initially appointed under the Indenture for the Notes is Wachovia Bank, National
Association.
The Notes of the series of which this Note is a part are issuable only in
registered form without coupons in denominations of $50 and in integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
A-5
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or in this Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or indirectly through
the Company or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or penalty or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as a condition of and
as part of the consideration for the issue hereof.
A-6
OPTION TO ELECT REPURCHASE
The undersigned hereby irrevocably requests and instructs the Company to
repurchase $____ principal amount of this Note in accordance with Section 205 of
the First Supplemental Indenture, on the "Repurchase Date," at the principal
amount of the Note plus any interest thereon accrued but unpaid to the date of
repurchase, to the undersigned at:
(Please print or type name and address of the undersigned),
and to issue to the undersigned, pursuant to the terms of the Indenture, a new
Note or Notes representing the remaining aggregate principal amount of this
Security.
For this Option to Elect Repayment to be effective, this Note with the Option to
Elect Repayment duly completed must be received by the Trustee at c/o
________________________ _______________________, no later than 5:00 p.m. on the
third Business Day immediately preceding December 1, 2005.
Dated:_______________________________ Signature:______________________________
Signature Guarantee:____________________
Note: The signature to this Option to Elect Repurchase must correspond with the
name as written upon the face of the within Note without alteration or
enlargement or change whatsoever.
A-7
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not
as tenants in common
UNIF GIFT MIN ACT - _________________ Custodian ___________________
(Cust) (Minor) Under
Uniform Gifts to Minors Act
Additional abbreviations may also be used though not in the above list.
_____________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________
______________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED and does
hereby irrevocably constitute and appoint
___________________________________________ Attorney to transfer said instrument
on the books of the within-named corporation, with full power of substitution in
the premises.
Dated: __________________________ ______________________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration by enlargement or any change whatever.
A-8
EXHIBIT B
[FORM OF FACE OF NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES HEREINAFTER DESCRIBED AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY NOMINEE OF THE DEPOSITARY TO A SUCCESSOR OF THE
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REGISTERED
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
SENIOR DEFERRABLE NOTE DUE 2007
No. R-___________ $
CUSIP No.____________
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED, a corporation duly organized
and existing under the laws of the State of New Jersey (herein called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to herein), for value received, hereby promises to pay Cede
& Co., or registered assigns, the principal sum of $[ ] ([ ]) or such other
principal sum as is reflected in the Schedule of Increases or Decreases attached
hereto on November 16, 2007, and to pay interest on said principal sum from
September 10, 2002, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 6.25% per annum to
but excluding the Reset Effective Date, and at the Reset Rate thereafter (which
rate shall not be higher than the maximum rate permitted by law) or, in the
event of a Failed Secondary Remarketing, to but excluding November 16, 2007,
until the principal hereof shall have become due and payable. The Company shall
pay interest on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is
B-1
enforceable under applicable law) on any overdue installment of interest at
10.25% per annum to but excluding the Reset Effective Date, and at the Reset
Rate thereafter, compounded quarterly (prior to the Reset Effective Date) or
semiannually (on and after the Reset Effective Date). Interest shall be payable
quarterly in arrears on February 16, May 16, August 16 and November 16 of each
year, commencing November 16, 2002; provided that, following the Reset Effective
Date, interest shall be payable semi-annually in arrears on each May 16 and
November 16, commencing November 16, 2005 (in the event that the Reset Effective
Date is also the Initial Reset Date) or May 16, 2006 (in the event that the
Reset Effective Date is also the Purchase Contract Settlement Date). If the
Reset Effective Date is the Initial Reset Date and such date is not otherwise a
scheduled Interest Payment Date, an interest payment shall be payable on the
Initial Reset Date equal to the amount of interest accrued on the Notes from the
most recent Interest Payment Date to but excluding the Initial Reset Date. In
such case, interest payable on the Interest Payment Date next following the
Initial Reset Date shall equal the amount of interest accrued from and including
the Initial Reset Date to but excluding such Interest Payment Date. Each date on
which interest is payable hereon is referred to herein as an "Interest Payment
Date." The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable is not a Business Day, then payment of the interest
payable on such date will be made on the next day that is a Business Day (and
without any interest or other payment in respect of such delay), except that, if
such Business Day is in the next calendar year, then such payment will be made
on the preceding Business Day. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture referred to herein, be paid to the Holder in whose
name this Note (or one or more Predecessor Notes, as defined in said Indenture)
is registered at the close of business on the Regular Record Date for such
interest installment, which shall be the close of business on the Business Day
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 Holder in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on a Special Record Date to be fixed by the Trustee referred to on the
reverse side hereof for the payment of such defaulted interest, notice whereof
shall be given to the Holders of this Note not less than 10 days prior to such
Special Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture.
Payment of the principal of and premium, if any, and interest on this Note
will be made at the office or agency of the Trustee maintained for that purpose
in such coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts. The Company may
pay principal and interest by check payable in such money mailed to the Holder's
registered address or by wire transfer to a dollar account designated by the
Holder.
Interest on this Note is deferrable, at the election of the Company, in
accordance with the terms of the First Supplemental Indenture, dated as of
September 10, 2002 (the "First Supplemental Indenture"), between the Company and
Wachovia Bank, National Association, as Trustee. Any deferred interest shall
accrue interest at the rate set forth in the First Supplemental Indenture.
B-2
This Note is, to the extent provided in the Indenture, unsecured and will
rank in right of payment equally with all other unsecured and unsubordinated
obligations of the Company.
Additional provisions of this Note are set forth on the reverse side
hereof, and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
B-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
Dated: September 10, 2002 By:
-----------------------------------
Name:
Title:
[SEAL]
Attest:
-----------------------------------
Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series referred to in the within-mentioned
Indenture.
Dated:September 10, 2002 WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:
-----------------------------------
Authorized Signatory
B-4
(FORM OF REVERSE OF NOTE)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
SENIOR DEFERRABLE NOTE DUE 2007
This Note is one of a duly authorized series of Securities of the Company
(herein called the "Notes") issued under an Indenture, dated as of November 1,
1998, as supplemented by the First Supplemental Indenture (together, as amended
or supplemented from time to time, the "Indenture"), between the Company and
Wachovia Bank, National Association (formerly known as First Union National
Bank), as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof, limited
in aggregate principal amount to $474,226,850.
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note is not subject to any sinking fund, nor may this Note be
redeemed at the option of the Company prior to the Maturity Date except upon the
occurrence of a Tax Event. In addition, the Notes shall be subject to repurchase
by the Company following a Failed Secondary Remarketing as described below.
The indebtedness of this Note will not be subject to defeasance pursuant
to the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Company, the Trust, the Holders of the Notes, and holders of Preferred
Securities and Common Securities agree to treat the Notes as indebtedness for
all United States federal income tax purposes.
If a Tax Event occurs and is continuing, the Company may, at its option
and upon not less than 30 nor more than 60 days' notice to the Holders of the
Notes, redeem the Notes in whole (but not in part) at a price per Note equal to
the Redemption Amount plus any accrued and unpaid interest (including compound
interest, if any) to the Tax Event Redemption Date. The Redemption Amount, plus
any accrued and unpaid interest (including compound interest, if any) to the Tax
Event Redemption Date, shall be paid prior to 12:00 noon, New York City time, on
the Tax Event Redemption Date, by check or wire transfer in immediately
available funds at such place and to such account as may be designated by each
such Holder.
If a Failed Secondary Remarketing has occurred, each Holder of Securities
will have the right to deliver the Notes to the Company for repurchase at a
price per Note equal to the Note Put Price. The Holder shall give written notice
of such election not less than three Business Days prior to December 1, 2005 and
the aggregate Put Price shall be paid prior to 12:00 noon, New York City time,
on December 1, 2005 by check or wire transfer in immediately available funds at
such place and to such account as may be designated by each such Holder.
B-5
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities at the time of each series to be affected (voting
as a class). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of each
series at the time, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
This Note shall be exchangeable for Notes registered in the names of
Persons other than the Depositary with respect to such series or its nominee
only as provided in this paragraph. This Note shall be so exchangeable if (x)
the Depositary is at any time unwilling or unable to continue as Depositary for
such series or no longer eligible or in good standing under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, or
(y) the Company executes and delivers to the Trustee an Order providing that
this Note shall be so exchangeable. Notes so issued in exchange for this Note
shall be of the same series, having the same interest rate, if any, and maturity
and having the same terms as this Note, in authorized denominations and in the
aggregate having the same principal amount as this Note and registered in such
names as the Depositary for such Global Note shall direct.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of a Note of the series of which this Note is a part is
registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company to be maintained
by the Trustee for that purpose in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
the form attached hereto and by such other documents satisfactory to the Company
and the Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. The
B-6
Security Registrar initially appointed under the Indenture for the Notes is
Wachovia Bank, National Association.
The Notes of the series of which this Note is a part are issuable only in
registered form without coupons in denominations of $50 and in integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or in this Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or indirectly through
the Company or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or penalty or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as a condition of and
as part of the consideration for the issue hereof.
B-7
OPTION TO ELECT REPURCHASE
The undersigned hereby irrevocably requests and instructs the Company to
repurchase $____ principal amount of this Note in accordance with Section 205 of
the First Supplemental Indenture, on the "Repurchase Date," at the principal
amount of the Note plus any interest thereon accrued but unpaid to the date of
repurchase, to the undersigned at:
(Please print or type name and address of the undersigned),
and to issue to the undersigned, pursuant to the terms of the Indenture, a new
Note or Notes representing the remaining aggregate principal amount of this
Security.
For this Option to Elect Repurchase to be effective, this Note with the Option
to Elect Repayment duly completed must be received by the Trustee at c/o
________________________ _______________________, no later than 5:00 p.m. on the
third Business Day immediately preceding December 1, 2005.
Dated: __________________________ Signature: _____________________________
Signature Guarantee: ___________________
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Note without alteration or
enlargement or change whatsoever.
B-8
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not
as tenants in common
UNIF GIFT MIN ACT - _________________ Custodian ___________________
(Cust) (Minor) Under
Uniform Gifts to Minors Act
_________________________________
Additional abbreviations may also be used though not in the above list.
---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________
______________________________________________________________
_________________________________________________________________________
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED and does
hereby irrevocably constitute and appoint
________________________________________ Attorney to transfer said instrument on
the books of the within-named corporation, with full power of substitution in
the premises.
Dated: __________________________ ________________________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration by enlargement or any change whatever.
B-9
SCHEDULE OF INCREASES OR DECREASES
The following increases or decreases in this Global Note have been made:
Amount of increase Amount of decrease Principal amount of
in principal in principal Note evidenced by Signature of
amount of Note amount of Note the Global Note authorized officer
evidenced by the evidenced by the following such of Trustee or
Global Note Global Note decrease or increase Securities Custodian
Date
-----------------------------------------------------------------------------------------------
B-10
EXHIBIT C
[FORM OF FACE OF NOTE]
REGISTERED
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
SENIOR DEFERRABLE NOTE DUE 2007
No. R- $
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED, a corporation duly organized
and existing under the laws of the State of New Jersey (herein called the
"Company," which term includes any successor corporation under the Indenture
hereinafter referred to herein), for value received, hereby promises to pay
Wachovia Bank, National Association, as Purchase Contract Agent pursuant to the
Purchase Contract Agreement (as defined in the Indenture), or registered
assigns, the principal sum of $[ ] ([ ]) or such other principal sum as is
reflected in the Schedule of Increases or Decreases attached hereto on November
16, 2007, and to pay interest on said principal sum from September 10, 2002, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, at the rate of 6.25% per annum to but excluding the Reset
Effective Date, and at the Reset Rate thereafter (which rate shall not be higher
than the maximum rate permitted by law) or, in the event of a Failed Secondary
Remarketing, to but excluding November 16, 2007, until the principal hereof
shall have become due and payable. The Company shall pay interest on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at 10.25% per annum to but excluding the Reset Effective
Date, and at the Reset Rate thereafter, compounded quarterly (prior to the Reset
Effective Date) or semiannually (on and after the Reset Effective Date).
Interest shall be payable quarterly in arrears on February 16, May 16, August 16
and November 16 of each year, commencing November 16, 2002; provided that,
following the Reset Effective Date, interest shall be payable semiannually in
arrears on each May 16 and November 16, commencing November 16, 2005 (in the
event that the Reset Effective Date is also the Initial Reset Date) or May 16,
2006 (in the event that the Reset Effective Date is also the Purchase Contract
Settlement Date). If the Reset Effective Date is the Initial Reset Date and such
date is not otherwise a scheduled Interest Payment Date, an interest payment
shall be payable on the Initial Reset Date equal to the amount of interest
accrued on the Notes from the most recent Interest Payment Date to but excluding
the Initial Reset Date. In such case, interest payable on the Interest Payment
Date next following the Initial Reset Date shall equal the
C-1
amount of interest accrued from and including the Initial Reset Date to but
excluding such Interest Payment Date. Each date on which interest is payable
hereon is referred to herein as an "Interest Payment Date." The amount of
interest payable for any period will be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is payable
is not a Business Day, then payment of the interest payable on such date will be
made on the next day that is a Business Day (and without any interest or other
payment in respect of such delay), except that, if such Business Day is in the
next calendar year, then such payment will be made on the preceding Business
Day. The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture referred to
herein, be paid to the Holder in whose name this Note (or one or more
Predecessor Notes, as defined in said Indenture) is registered at the close of
business on the Regular Record Date for such interest installment, which shall
be the close of business on the Business Day 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 Holder in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date to be fixed by the Trustee referred to on the reverse side hereof for the
payment of such defaulted interest, notice whereof shall be given to the Holders
of this Note not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which this Note may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
Payment of the principal of and premium, if any, and interest on this Note
will be made at the office or agency of the Trustee maintained for that purpose
in such coin or currency of the United States of America that at the time of
payment is legal tender for payment of public and private debts. The Company may
pay principal and interest by check payable in such money mailed to the Holder's
registered address or by wire transfer to a dollar account designated by the
Holder.
Interest on this Note is deferrable, at the election of the Company, in
accordance with the terms of the First Supplemental Indenture, dated as of
September 10, 2002 (the "First Supplemental Indenture"), between the Company and
Wachovia Bank, National Association, as Trustee. Any deferred interest shall
accrue interest at the rate set forth in the First Supplemental Indenture.
This Note is, to the extent provided in the Indenture, unsecured and will
rank in right of payment equally with all other unsecured and unsubordinated
obligations of the Company.
Additional provisions of this Note are set forth on the reverse side
hereof, and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
C-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
Dated: September 10, 2002 By:
---------------------------------------
Name:
Title:
[SEAL]
Attest: -------------------------------
Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: September 10, 2002 WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:
---------------------------------------
Authorized Signatory
C-3
(FORM OF REVERSE OF NOTE)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
SENIOR DEFERRABLE NOTE DUE 2007
This Note is one of a duly authorized series of Securities of the Company
(herein called the "Notes") issued under an Indenture, dated as of November 1,
1998, as supplemented by the First Supplemental Indenture (together, as amended
or supplemented from time to time, the "Indenture"), between the Company and
Wachovia Bank, National Association (formerly known as First Union National
Bank), as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof, limited
in aggregate principal amount to $474,226,850.
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
This Note is not subject to any sinking fund, nor may this Note be
redeemed at the option of the Company prior to the Maturity Date except upon the
occurrence of a Tax Event. In addition, the Notes shall be subject to repurchase
by the Company following a Failed Secondary Remarketing as described below.
The indebtedness of this Note will not be subject to defeasance pursuant
to the Indenture.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Company, the Trust, the Holders of the Notes, and holders of Preferred
Securities and Common Securities agree to treat the Notes as indebtedness for
all United States federal income tax purposes.
If a Tax Event occurs and is continuing, the Company may, at its option
and upon not less than 30 nor more than 60 days' notice to the Holders of the
Notes, redeem the Notes in whole (but not in part) at a price per Note equal to
the Redemption Amount plus any accrued and unpaid interest (including compound
interest, if any) to the Tax Event Redemption Date. The Redemption Amount, plus
any accrued and unpaid interest (including compound interest, if any) to the Tax
Event Redemption Date, shall be paid prior to 12:00 noon, New York City time, on
the Tax Event Redemption Date, by check or wire transfer in immediately
available funds at such place and to such account as may be designated by each
such Holder.
C-4
If a Failed Secondary Remarketing has occurred, each Holder of Securities
will have the right to deliver the Notes to the Company for repurchase at a
price per Note equal to the Note Put Price. The Holder shall give written notice
of such election not less than three Business Days prior to December 1, 2005 and
the aggregate Put Price shall be paid prior to 12:00 noon, New York City time,
on December 1, 2005 by check or wire transfer in immediately available funds at
such place and to such account as may be designated by each such Holder.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities at the time of each series to be affected (voting
as a class). The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Outstanding Securities of each
series at the time, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of a Note of the series of which this Note is a part is
registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company to be maintained
by the Trustee for that purpose in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
the form attached hereto and by such other documents satisfactory to the Company
and the Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. The Security Registrar
initially appointed under the Indenture for the Notes is Wachovia Bank, National
Association.
The Notes of the series of which this Note is a part are issuable only in
registered form without coupons in denominations of $50 and in integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
C-5
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or in this Security, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or indirectly through
the Company or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or penalty or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance hereof and as a condition of and
as part of the consideration for the issue hereof.
C-6
OPTION TO ELECT REPURCHASE
The undersigned hereby irrevocably requests and instructs the Company to
repurchase $____ principal amount of this Note in accordance with Section 205 of
the First Supplemental Indenture, on the "Repurchase Date," at the principal
amount of the Note plus any interest thereon accrued but unpaid to the date of
repurchase, to the undersigned at:
(Please print or type name and address of the undersigned),
and to issue to the undersigned, pursuant to the terms of the Indenture, a new
Note or Notes representing the remaining aggregate principal amount of this
Security.
For this Option to Elect Repurchase to be effective, this Note with the Option
to Elect Repayment duly completed must be received by the Trustee at c/o
________________________ _______________________, no later than 5:00 p.m. on the
third Business Day immediately preceding December 1, 2005.
Dated: ___________________________ Signature: ______________________________
Signature Guarantee: ____________________
Note: The signature to this Option to Elect Repurchase must correspond with the
name as written upon the face of the within Note without alteration or
enlargement or change whatsoever.
C-7
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - _________________ Custodian _______________________
(Cust) (Minor) Under
Uniform Gifts to Minors Act
Additional abbreviations may also be used though not in the above list.
_______________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________________________
______________________________________________________________
--------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address of Assignee)
the within instrument of PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED and does
hereby irrevocably constitute and appoint
___________________________________________ Attorney to transfer said instrument
on the books of the within-named corporation, with full power of substitution in
the premises.
Dated: _____________________ ________________________________________
Signature
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration by enlargement or any change whatever.
C-8
SCHEDULE OF INCREASES OR DECREASES
The following increases or decreases in this Pledged Note have been made:
Amount of increase Amount of decrease Principal amount of
in principal in principal Note evidenced by Signature of
amount of Note amount of Note the Pledged Note authorized officer
evidenced by the evidenced by the following such of Trustee or
Pledged Note Pledged Note decrease or increase Securities Custodian
Date
-----------------------------------------------------------------------------------------------
C-9
