Exhibit 3-6
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of July 31, 2002 (this "Trust Agreement"),
among Public Service Enterprise Group Incorporated, a New Jersey corporation, as
"Depositor," and Wachovia Trust Company, National Association, a banking
association organized under the laws of the United States, and Xxxxxx X.
Xxxxxxx, as trustees (the "Trustees"). The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "PSEG Funding Trust
IV," in which name the Trustees, or the Depositor to the extent provided herein,
may conduct the business of the Trust, make and execute contracts, and xxx and
be sued.
2. The Depositor hereby assigns, transfers conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitutes a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"),
and that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the preferred securities and the common securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the depositor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 or other appropriate form
(the "1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to the 1933 Act Registration Statement (including any
preliminary prospectus, prospectus or prospectus supplements, and the exhibits
contained therein), relating to the registration under the Securities Act of
1933, as amended, of the preferred securities of the Trust and (b) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the preferred securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or any other national stock exchange or
The Nasdaq Stock Market (each, an "Exchange") and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the preferred securities of the Trust to be listed on any of
the Exchanges; (iii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the preferred securities of the Trust under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; (iv) to execute and
deliver letters or documents to, or instruments for filing with, a depository
relating to the preferred securities of the Trust; and (v) to execute on behalf
of the Trust that certain Underwriting Agreement relating to the preferred
securities of the Trust, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as an exhibit to
the 1933 Act Registration Statement. In the event that any filing referred to in
clauses (i), (ii) and (iii) above is required by the rules and regulations of
the Commission, an Exchange or state securities or blue sky laws, to be executed
on behalf of the Trust by any of the Trustees, Xxxxxx X. Xxxxxxx, in his
capacity as a trustee of the Trust, is hereby authorized and directed to join in
any such filing and to execute on behalf of the Trust any and all of the
foregoing. In connection with all of the foregoing, the Depositor hereby
constitutes and appoints Xxxxxx X. Xxxxxxx as its true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as the Depositor might or could to in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
respective substitute, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. The Depositor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses actually incurred (including reasonable fees and expenses of
counsel and other experts), and (ii) indemnify, defend and hold harmless the
Trustees and any of the officers, directors, employees and agents of the
Trustees (the "Indemnified Persons") from and against any and all losses,
damages, liabilities, claims, actions, suits, costs, expenses, disbursements
(including the reasonable fees and expenses of counsel), taxes and penalties of
any kind and nature whatsoever actually incurred (collectively, "Expenses"), to
the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Trust Agreement, the creation, operation or
termination of the Trust or the transactions contemplated hereby; provided,
however, that the Depositor shall not be required to indemnify any Indemnified
Person for any Expenses which are a result of the willful misconduct, bad faith
or gross negligence of such Indemnified Person.
8. The Depositor may, in its sole discretion, dissolve and terminate
the Trust.
9. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED, as Depositor
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
WACHOVIA TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By: /s/ XXX X. XXXXXX
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Name: Xxx X. Xxxxxx
Title: Assistant Vice President
XXXXXX X. XXXXXXX, as Trustee
/s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
