, dated as of September 10, 2002 (the "Agreement"),
by and among Public Service Enterprise Group Incorporated, a New Jersey
corporation (the "Company"), PSEG Funding Trust I, a Delaware statutory trust
(the "Trust"), Wachovia Bank, National Association (formerly known as First
Union National Bank), a banking association organized under the laws of the
United States, not individually but solely as Purchase Contract Agent (the
"Purchase Contract Agent") and as attorney-in-fact of the holders of Purchase
Contracts (as defined in the Purchase Contract Agreement (as defined herein)),
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing
Agent").
WITNESSETH:
WHEREAS, the Company will issue $460,000,000 aggregate Stated Amount of
its Participating Units (the "Participating Units") under the Purchase Contract
Agreement, dated as of September 10, 2002, by and between the Purchase Contract
Agent and the Company (the "Purchase Contract Agreement"); and
WHEREAS, the Trust will issue concurrently, as part of the Participating
Units, preferred securities (the "Preferred Securities") representing undivided
beneficial interests in the assets of the Trust in an aggregate liquidation
amount equal to the aggregate Stated Amount of the Participating Units under the
Amended and Restated Trust Agreement, dated as of September 10, 2002, by and
among the Company, the Administrative Trustees, the Delaware Trustee and the
Property Trustee (the "Declaration"); and
WHEREAS, the Participating Units will initially consist of 9,200,000 units
referred to as "Corporate Units," each of which will consist of a Preferred
Security and a Purchase Contract;
WHEREAS, the sole assets of the Trust, $474,226,850 aggregate principal
amount of Senior Deferrable Notes due 2007 (the "Notes") of the Company, will be
purchased by the Trust from the Company with the proceeds of the sale of the
Preferred Securities and the proceeds of the sale to the Company of the common
securities representing undivided beneficial interests in the assets of the
Trust; and
WHEREAS, the Preferred Securities (or upon a dissolution of the Trust and
the distribution of the Notes as described in the Declaration, such Notes) will
be pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as
of September 10, 2002, by and among the Company, The Bank of New York, as
collateral agent (the "Collateral Agent"), and the Purchase Contract Agent, to
secure a Corporate Unit holder's obligations under the related Purchase Contract
on the Purchase Contract Settlement Date; and
WHEREAS, the Preferred Securities or the Notes, as the case may be, of
Corporate Unit holders and of the Preferred Security holders or Note holders
electing to have their Preferred Securities or Notes remarketed will be
remarketed by the Remarketing Agent on the third Business Day immediately
preceding the Initial Reset Date (the "Initial Remarketing Date"); and
WHEREAS, in the event of a Failed Initial Remarketing, the Preferred
Securities or the Notes, as the case may be, of the Preferred Security holders
or Note holders electing to have their Preferred Securities or Notes remarketed
and of the Corporate Unit holders who have elected not to settle the Purchase
Contracts related to their Corporate Units by Cash Settlement will be remarketed
by the Remarketing Agent on the third Business Day immediately preceding the
Purchase Contract Settlement Date; and
WHEREAS, in the event of a Successful Initial Remarketing, the applicable
distribution rate on the Preferred Securities (or the interest rate on the
Notes) will be reset on the Initial Remarketing Date, to the Reset Rate to be
determined by the Reset Agent as the rate that such Preferred Securities (or
such Notes) should bear in order for the aggregate liquidation amount of the
Preferred Securities or the aggregate principal amount of the Notes to have an
approximate aggregate market value of 100.25% of the sum of the Treasury
Portfolio Purchase Price, the Separate Preferred Securities or Notes Purchase
Price plus deferred and unpaid distributions or interest, if any, on the
Preferred Securities or Notes, as the case may be, on the Initial Remarketing
Date, provided that in the determination of such Reset Rate, the Company shall,
if applicable, limit the Reset Rate to the maximum rate permitted by applicable
law; and
WHEREAS, in the event of a Failed Initial Remarketing, the applicable
distribution rate on the Preferred Securities (or the interest rate on the
Notes) that remain outstanding on and after the Initial Remarketing will be
reset on the third Business Day immediately preceding the Purchase Contract
Settlement Date, to the Reset Rate to be determined by the Reset Agent as the
rate that such Preferred Securities (and the Notes) should bear in order to have
an approximate market value of 100.25% of the aggregate liquidation amount (plus
deferred and unpaid distributions, if any) of the Preferred Securities or the
aggregate principal amount (plus deferred and unpaid interest, if any) of the
Notes on the third Business Day immediately preceding the Purchase Contract
Settlement Date, provided that in the determination of such Reset Rate, the
Company shall, if applicable, limit the Reset Rate to the maximum rate permitted
by applicable law; and
WHEREAS, the Company has requested Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") to act as the Reset Agent and as the Remarketing
Agent, and as such to perform the services described herein; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Reset Agent and Remarketing
Agent and as such to perform such duties on the terms and conditions expressly
set forth herein;
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used and not defined in this
Agreement, in the recitals hereto or in the paragraph preceding such recitals
shall have the meanings assigned to them in the Purchase Contract Agreement or,
if not therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent. (a) The
Company hereby appoints Xxxxxxx Xxxxx and Xxxxxxx Xxxxx hereby accepts such
appointment, (i) as the Reset Agent to determine in consultation with the
Company (1) the Reset Rate that, in the
2
opinion of the Reset Agent, will, when applied to the Preferred Securities (or
the Notes), enable the Preferred Securities or Notes, as the case may be, to
have an approximate aggregate market value of 100.25% of the Treasury Portfolio
Purchase Price, the Separate Preferred Securities or Notes Purchase Price and
deferred and unpaid distributions or interest, if any, on the Preferred
Securities or Notes, as the case may be, as of the Initial Remarketing Date, and
(2) in the event of a Failed Initial Remarketing, the Reset Rate that, in the
opinion of the Reset Agent, will, when applied to the Preferred Securities or
the Notes, enable a Preferred Security or a Note to have an approximate market
value equal to the sum of 100.25% of its liquidation amount or principal amount,
as the case may be, plus deferred and unpaid distributions or interest, if any,
thereon as of the third Business Day preceding the Purchase Contract Settlement
Date, provided, in each case, that the Company, by notice to the Reset Agent
prior to the eighth Business Day preceding (x) the Initial Reset Date, in the
case of the Initial Remarketing, or (y) the Purchase Contract Settlement Date,
in the case of the Secondary Remarketing, shall, if applicable, limit the Reset
Rate so that it does not exceed the maximum rate permitted by applicable law and
(ii) as the exclusive Remarketing Agent (subject to the right of Xxxxxxx Xxxxx
to appoint additional remarketing agents hereunder as described below) to, in
the manner provided for herein, in the Declaration with respect to the Preferred
Securities and in the Indenture with respect to the Notes, (1) remarket the
Preferred Securities or Notes of the Preferred Security holders or Note holders
electing to have their Preferred Securities or Notes remarketed and of the
Corporate Unit holders on the Initial Remarketing Date, for settlement on the
Initial Reset Date and (2) in the case of a Failed Initial Remarketing, remarket
the Preferred Securities or Notes of the Preferred Security holders or Note
holders electing to have their Preferred Securities or Notes remarketed or of
the Corporate Unit holders who have failed to notify the Purchase Contract
Agent, on or prior to the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, of their intention to settle the related Purchase
Contracts through Cash Settlement. In connection with the remarketing
contemplated hereby, the Remarketing Agent will enter into a Supplemental
(the "Supplemental ") with the
Company, the Trust and the Purchase Contract Agent, which shall either be (i)
substantially in the form attached hereto as Exhibit A (with such changes as the
Company, the Trust and the Remarketing Agent may agree upon, it being understood
that changes may be necessary in the representations, warranties, covenants and
other provisions of the Supplemental due to changes in law
or facts and circumstances or in the event that Xxxxxxx Xxxxx is not the sole
remarketing agent, and with such further changes therein as the Remarketing
Agent may reasonably request), or (ii) in such other form as the Remarketing
Agent may reasonably request, subject to the approval of the Company and the
Trust (such approval not to be unreasonably withheld). Anything herein to the
contrary notwithstanding, Xxxxxxx Xxxxx shall not be obligated to act as
Remarketing Agent or Reset Agent hereunder unless the Supplemental is in form and substance reasonably satisfactory to Xxxxxxx Xxxxx. The
Company agrees that Xxxxxxx Xxxxx shall have the right, on 15 Business Days'
notice to the Company, to appoint one or more additional remarketing agents so
long as any such additional remarketing agents shall be reasonably acceptable to
the Company. Upon any such appointment, the parties shall enter into an
appropriate amendment to this Agreement to reflect the addition of any such
remarketing agent.
(b) Pursuant to the Supplemental , the Remarketing
Agent, either as sole remarketing agent or as representative of a group of
remarketing agents appointed as aforesaid, will agree, subject to the terms and
conditions set forth herein and therein, to use its
3
reasonable efforts to (i) remarket, on the Initial Remarketing Date, the
Preferred Securities or Notes, as the case may be, that the Custodial Agent and
the Purchase Contract Agent shall have notified the Remarketing Agent have been
tendered for, or otherwise are to be included in, the Initial Remarketing, at a
price per Preferred Security or Note such that the aggregate price for the
Preferred Securities or Notes comprising Corporate Units is approximately equal
to the sum of 100.25% of the Treasury Portfolio Purchase Price, the Separate
Preferred Securities or Notes Purchase Price and deferred and unpaid
distributions or interest, if any, on the Preferred Securities or Notes, as the
case may be and (ii) in the event of a Failed Initial Remarketing, remarket, on
the third Business Day immediately preceding the Purchase Contract Settlement
Date, the Preferred Securities or Notes that the Custodial Agent and the
Purchase Contract Agent shall have notified the Remarketing Agent have been
tendered for, or otherwise are to be included in, the Secondary Remarketing, at
a price that is approximately 100.25% of the aggregate liquidation amount of
such Preferred Securities or aggregate principal amount of such Notes and
deferred and unpaid distributions or interest, if any, on the Preferred
Securities or Notes.
Notwithstanding the preceding sentence, the Remarketing Agent shall not
remarket the Preferred Securities or Notes for a price that is less than the sum
of 100% of the Treasury Portfolio Purchase Price, the Separate Preferred
Securities or Notes Purchase Price, and deferred and unpaid distributions or
interest, if any, on the Preferred Securities or Notes, as the case may be (the
"Minimum Initial Remarketing Price"), in the case of the Initial Remarketing, or
the aggregate liquidation amount of such Preferred Securities or aggregate
principal amount of such Notes and deferred and unpaid distributions or
interest, if any, on the Preferred Securities or Notes, in the case of the
Secondary Remarketing. After deducting the fee specified in Section 3 below, the
proceeds of such Initial Remarketing or Secondary Remarketing, as the case may
be, shall be paid to the Collateral Agent in accordance with Section 5.07 of the
Pledge Agreement and Section 5.02 of the Purchase Contract Agreement (each of
which Sections are incorporated herein by reference). The right of each holder
of Preferred Securities, Notes or Corporate Units to have Preferred Securities
or Notes, as the case may be, tendered for the Initial Remarketing or the
Secondary Remarketing, as the case may be, shall be limited to the extent that
(i) the Remarketing Agent conducts an Initial Remarketing and, in the event of a
Failed Initial Remarketing, a Secondary Remarketing pursuant to the terms of
this Agreement, (ii) Preferred Securities or Notes, as the case may be, tendered
have not been called for redemption, (iii) the Remarketing Agent is able to find
a purchaser or purchasers for tendered Preferred Securities or Notes, as the
case may be, at a price of not less than the Minimum Initial Remarketing Price,
in the case of the Initial Remarketing, and the sum of 100% of the liquidation
amount or principal amount thereof and deferred and unpaid distributions or
interest, if any, on the Preferred Securities or Notes, in the case of the
Secondary Remarketing and (iv) such purchaser or purchasers deliver the purchase
price therefor to the Remarketing Agent as and when required.
(c) It is understood and agreed that neither the Remarketing Agent nor the
Reset Agent shall have any obligation whatsoever to purchase any Preferred
Securities or Notes, as the case may be, whether in the Initial Remarketing,
Secondary Remarketing or otherwise, and shall in no way be obligated to provide
funds to make payment upon tender of Preferred Securities or Notes, as the case
may be, for remarketing or to otherwise expend or risk their own funds or incur
or be exposed to financial liability in the performance of their respective
duties under this Agreement or the Supplemental , and,
without limitation of the foregoing, the
4
Remarketing Agent shall not be deemed an underwriter of the remarketed Preferred
Securities or Notes, as the case may be. The Company shall not be obligated in
any case to provide funds to make payment upon tender of Preferred Securities or
Notes, as the case may be, for remarketing.
Section 3. Fees. In the event of a Successful Initial Remarketing, the
Remarketing Agent shall retain as a remarketing fee (the "Remarketing Fee") an
amount not exceeding 25 basis points (0.25%) of the Minimum Initial Remarketing
Price from any amount received in connection with such Initial Remarketing in
excess of the Minimum Initial Remarketing Price. In the event of a Successful
Secondary Remarketing, the Remarketing Agent shall retain as the Remarketing Fee
an amount not exceeding 25 basis points (0.25%), of the principal amount of the
remarketed Preferred Securities or Notes from any amount received in connection
with such Secondary Remarketing in excess of the sum of the aggregate principal
amount of such remarketed Preferred Securities or Notes plus deferred and unpaid
distributions or interest, as the case may be. In addition, the Reset Agent
shall, in either case, receive from the Company a reasonable and customary fee
(the "Reset Agent Fee"); provided, however, that if the Remarketing Agent shall
also act as the Reset Agent, then the Reset Agent shall not be entitled to
receive any such Reset Agent Fee. Payment of such Reset Agent Fee shall be made
by the Company on the Initial Remarketing Date, in the case of a Successful
Initial Remarketing, or on the third Business Day immediately preceding the
Purchase Contract Settlement Date, in the case of a Successful Secondary
Remarketing, in immediately available funds or, upon the instructions of the
Reset Agent, by certified or official bank check or checks or by wire transfer.
Section 4. Replacement and Resignation of Remarketing Agent. (a) The
Company may in its absolute discretion replace Xxxxxxx Xxxxx as the Remarketing
Agent and as the Reset Agent hereunder by giving notice prior to 3:00 p.m., New
York City time (i) on the eleventh Business Day immediately prior to the Initial
Reset Date, or (ii) in the event of a Failed Initial Remarketing, prior to 3:00
p.m., New York City time on the eleventh Business Day immediately prior to the
Purchase Contract Settlement Date, provided, in either case, that the Company
must replace Xxxxxxx Xxxxx both as Remarketing Agent and as Reset Agent unless
Xxxxxxx Xxxxx shall otherwise agree. Any such replacement shall become effective
upon the Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and the Reset Agent.
Upon providing such notice, the Company shall use all reasonable efforts to
appoint such a successor and to enter into a with such
successor as soon as reasonably practicable. The Company shall notify the
Purchase Contract Agent and the Collateral Agent of the appointment of any such
successor in writing.
(b) Xxxxxxx Xxxxx may resign at any time and be discharged from its duties
and obligations hereunder as the Remarketing Agent and/or as the Reset Agent by
giving notice prior to 3:00 p.m., New York City time (i) on the eleventh
Business Day immediately prior to May 16, 2005, or (ii) in the event of a Failed
Initial Remarketing, on the eleventh Business Day immediately prior to the
Purchase Contract Settlement Date. Any such resignation shall become effective
upon the Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and/or the Reset
Agent. Upon receiving notice from the Remarketing Agent and/or the Reset Agent
that it wishes to resign hereunder, the Company shall appoint such a successor
and enter into a with it as soon as reasonably
practicable.
5
Section 5. Dealing in the Securities. Each of the Remarketing Agent and
the Reset Agent, when acting hereunder or, in the case of the Remarketing Agent,
under the Supplemental Remarketing Agreement, or when acting in its individual
or any other capacity, may, to the extent permitted by law, buy, sell, hold or
deal in any of the Preferred Securities or Notes, as the case may be, Treasury
Units, Corporate Units or any other securities of the Company. With respect to
any Preferred Securities or Notes, as the case may be, Treasury Units, Corporate
Units or any other securities of the Company owned by it, each of the
Remarketing Agent and the Reset Agent may exercise any vote or join in any
action with like effect as if it did not act in any capacity hereunder. Each of
the Remarketing Agent and the Reset Agent, in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity hereunder. The Company may, to the extent permitted by law, purchase
any Preferred Securities or Notes that are remarketed by any Remarketing Agent.
Section 6. Registration Statement and Prospectus. (a) In connection with
the Initial Remarketing, if and to the extent required in the view of counsel
(which need not be an opinion) for either the Remarketing Agent, the Company or
the Trust by applicable law, regulations or interpretations in effect at the
time of such Initial Remarketing, each of the Company and the Trust, as
applicable (i) shall use its reasonable efforts to have a registration statement
relating to the Preferred Securities or Notes, as the case may be, effective
under the Securities Act of 1933, as amended (the "1933 Act") prior to the third
Business Day immediately preceding the Initial Reset Date, (ii) if requested by
the Remarketing Agent shall furnish a current preliminary prospectus and, if
applicable, a current preliminary prospectus supplement to be used by the
Remarketing Agent in the Initial Remarketing not later than seven Business Days
prior to the Initial Reset Date (or such earlier date as the Remarketing Agent
may reasonably request) and in such quantities as the Remarketing Agent may
reasonably request, and (iii) shall furnish a current final prospectus and, if
applicable, a final prospectus supplement to be used by the Remarketing Agent in
the Initial Remarketing not later than the third Business Day immediately
preceding the Initial Reset Date in such quantities as the Remarketing Agent may
reasonably request, and shall pay all expenses relating thereto.
(b) In the event of a Failed Initial Remarketing and in connection with
the Secondary Remarketing, if and to the extent required in the view of counsel
(which need not be an opinion) for either the Remarketing Agent, the Company or
the Trust by applicable law, regulations or interpretations in effect at the
time of such Secondary Remarketing, each of the Company and the Trust, as
applicable (i) shall use its reasonable efforts to have a registration statement
relating to the Preferred Securities or the Notes, as the case may be, effective
under the 1933 Act prior to the third Business Day immediately preceding the
Purchase Contract Settlement Date, (ii) if requested by the Remarketing Agent,
shall furnish a current preliminary prospectus and, if applicable, a current
preliminary prospectus supplement to be used by the Remarketing Agent in the
Secondary Remarketing not later than seven Business Days prior to the Purchase
Contract Settlement Date (or such earlier date as the Remarketing Agent may
reasonably request) and in such quantities as the Remarketing Agent may
reasonably request, and (iii) shall furnish a current final prospectus and, if
applicable, a final prospectus supplement to be used by the Remarketing Agent in
the Secondary Remarketing not later than the third Business Day immediately
preceding the Purchase Contract Settlement Date in such quantities as the
Remarketing Agent may reasonably request, and shall pay all expenses relating
thereto.
6
(c) If, in connection with the Initial Remarketing or, in the event of a
Failed Initial Remarketing, the Secondary Remarketing, it shall not be possible,
in the view of counsel (which need not be an opinion) for either the Remarketing
Agent, the Company or the Trust, under applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing or such
Secondary Remarketing to either register the offer and sale by the Company or
the Trust, as the case may be, of the Preferred Securities or the Notes, as the
case may be, under the 1933 Act or deliver a current prospectus meeting the
requirements of Section (10)(a) of the 1933 Act and the rules and regulations
thereunder, as otherwise contemplated by this Section 6, the Company and the
Trust, as the case may be (i) shall use reasonable efforts to take, or cause to
be taken, all action and to do, or cause to be done, all things necessary,
proper and advisable to permit and effectuate the offer and sale of the
Preferred Securities or the Notes, as the case may be, in connection with the
Initial Remarketing or the Secondary Remarketing, as the case may be, without
registration under the 1933 Act pursuant to an exemption therefrom, if
available, including the exemption afforded by Rule l44A under the rules and
regulations promulgated under the 1933 Act by the Securities and Exchange
Commission, (ii) if requested by the Remarketing Agent shall furnish a current
preliminary remarketing memorandum to be used by the Remarketing Agent in the
Initial Remarketing or the Secondary Remarketing, as the case may be, not later
than seven Business Days prior to the Initial Reset Date, in the case of the
Initial Remarketing, or the Purchase Contract Settlement Date, in the case of
the Secondary Remarketing (or in either case such earlier date as the
Remarketing Agent may reasonably request) and in such quantities as the
Remarketing Agent may reasonably request and (iii) shall furnish a current final
remarketing memorandum to be used by the Remarketing Agent in the Initial
Remarketing or the Secondary Remarketing, as the case may be, not later than the
third Business Day immediately preceding the Initial Reset Date, in the case of
the Initial Remarketing, or the Purchase Contract Settlement Date, in the case
of the Secondary Remarketing, in such quantities as the Remarketing Agent may
reasonably request, and shall pay all expenses relating thereto.
(d) The Company or the Trust, as the case may be, shall also use its
reasonable effort to take all such actions as may (upon advice of counsel to the
Company, the Trust or the Remarketing Agent) be necessary or desirable under
state securities or blue sky laws in connection with the Initial Remarketing and
the Secondary Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations. (a) The
obligations of the Remarketing Agent and the Reset Agent under this Agreement
and, in the case of the Remarketing Agent, the Supplemental Remarketing
Agreement shall be subject to the terms and conditions of this Agreement and the
Supplemental Remarketing Agreement, including, without limitation, the following
conditions: (i) the Preferred Securities or the Notes tendered for, or otherwise
to be included in the Initial Remarketing or Secondary Remarketing, as the case
may be, have not been called for redemption, (ii) the Remarketing Agent is able
to find a purchaser or purchasers for tendered Preferred Securities or Notes (1)
in the case of the Initial Remarketing, at a price not less than Minimum Initial
Remarketing Price, and (2) in the case of the Secondary Remarketing, at a price
per Preferred Security not less than 100% of the liquidation amount thereof plus
deferred and unpaid distributions, if any thereon, or at a price per Note not
less than 100% of the principal amount thereof plus deferred and unpaid
interest, if any, thereon, (iii) the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent, the Securities Intermediary, the Company, the Trust,
the Indenture Trustee and the Property Trustee shall have performed
7
their respective obligations in connection with the Initial Remarketing and, in
the event of a Failed Initial Remarketing, in connection with the Secondary
Remarketing, in each case pursuant to the Purchase Contract Agreement, the
Pledge Agreement, the Indenture, the Declaration, this Agreement and the
Supplemental Remarketing Agreement (including, without limitation, the Quotation
Agent giving the Remarketing Agent notice of the Treasury Portfolio Purchase
Price and the Separate Preferred Securities or Notes Purchase Price no later
than 5:00 p.m., New York City time, on the fourth Business Day prior to the
Initial Reset Date, in the case of the Initial Remarketing, and the Purchase
Contract Agent giving the Remarketing Agent notice of the aggregate liquidation
amount or aggregate principal amount, as the case may be, of Preferred
Securities or Notes to be remarketed, no later than 11:00 a.m., New York City
time, on the fourth Business Day prior to the Purchase Contract Settlement Date,
in the case of the Secondary Remarketing, and, in each case, the Collateral
Agent and the Custodial Agent concurrently delivering the Preferred Securities
or Notes, as the case may be, to be remarketed to the Remarketing Agent), (iv)
no Event of Default shall have occurred and be continuing, (v) the accuracy of
the representations and warranties of the Company included and incorporated by
reference in this Agreement and the Supplemental Remarketing Agreement or in
certificates of any officer of the Company delivered pursuant to the provisions
included or incorporated by reference in this Agreement or the Supplemental
Remarketing Agreement, (vi) the performance by the Company of its covenants and
other obligations included and incorporated by reference in this Agreement and
the Supplemental Remarketing Agreement, and (vii) the satisfaction of the other
conditions set forth and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement.
(b) If at any time during the term of this Agreement, any Event of Default
or event that with the passage of time or the giving of notice or both would
become an Event of Default has occurred and is continuing under the Indenture,
then the obligations and duties of the Remarketing Agent and the Reset Agent
under this Agreement and the Supplemental Remarketing Agreement shall be
suspended until such default or event has been cured. The Company will promptly
give the Remarketing Agent notice of all such defaults and events of which the
Company is aware.
Section 8. Termination of Remarketing Agreement. This Agreement shall
terminate as to any Remarketing Agent or Reset Agent that is replaced on the
effective date of its replacement pursuant to Section 4(a) hereof or pursuant to
Section 4(b) hereof. Notwithstanding any such termination, the obligations set
forth in Section 3 hereof shall survive and remain in full force and effect
until all amounts payable under said Section 3 shall have been paid in full;
provided, however, that if any Reset Agent resigns prior to a successful
remarketing, then the obligations set forth in Section 3 hereof shall not
survive the termination of this Agreement and no fee shall be payable to such
Reset Agent in such capacity. In addition, each former Remarketing Agent and
Reset Agent shall be entitled to the rights and benefits under Section 10 of
this Agreement, notwithstanding the replacement or resignation of such
Remarketing Agent or Reset Agent.
Section 9. Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Remarketing Agent and the Reset Agent shall be determined
solely by the express provisions of this Agreement and, in the case of the
Remarketing Agent, the Supplemental Remarketing Agreement. No implied covenants
or obligations of or against the Remarketing Agent or the Reset Agent shall be
read into this Agreement or the Supplemental
8
Remarketing Agreement. In the absence of bad faith on the part of the
Remarketing Agent or the Reset Agent, as the case may be, the Remarketing Agent
and the Reset Agent each may conclusively rely upon any document furnished to it
which purports to conform to the requirements of this Agreement or the
Supplemental Remarketing Agreement, as the case may be, as to the truth of the
statements expressed therein. Each of the Remarketing Agent and the Reset Agent
shall be protected in acting upon any document or communication reasonably
believed by it to be signed, presented or made by the proper party or parties.
Neither the Remarketing Agent nor the Reset Agent shall have any obligation to
determine whether there is any limitation under applicable law on the Reset Rate
on the Preferred Securities or the Notes, as the case may be, or, if there is
any such limitation, the maximum permissible Reset Rate on the Preferred
Securities or the Notes, as the case may be, and they shall rely solely upon
written notice from the Company (which the Company agrees to provide on or prior
to the eighth Business Day before the Initial Reset Date, in the case of the
Initial Remarketing, and prior to the tenth Business Day before Purchase
Contract Settlement Date, in the case of the Secondary Remarketing) as to
whether or not there is any such limitation and, if so, the maximum permissible
Reset Rate. Neither the Remarketing Agent nor the Reset Agent shall incur any
liability under this Agreement or the Supplemental Remarketing Agreement to any
beneficial owner or holder of Preferred Securities or Notes, or other
securities, either in its individual capacity or as Remarketing Agent or Reset
Agent, as the case may be, for any action or failure to act in connection with
the Remarketing or otherwise in connection with the transactions contemplated by
this Agreement or the Supplemental Remarketing Agreement, except to the extent
that it shall have been determined by a court of competent jurisdiction by final
and nonappealable judgment that such liability has resulted from the willful
misconduct, bad faith or gross negligence of the Remarketing Agent or the Reset
Agent or by their failure to fulfill in any material respect their express
obligations hereunder or, in the case of the Remarketing Agent, under the
Supplemental Remarketing Agreement. The provisions of this Section 9 shall
survive any termination of this Agreement and shall also continue to apply to
every Remarketing Agent and Reset Agent notwithstanding their resignation or
removal.
Section 10. Indemnification and Contribution. (a) The Company and the
Trust, jointly and severally, agree to indemnify and hold harmless the
Remarketing Agent, the Reset Agent and their respective directors, officers,
employees, agents, affiliates and each person, if any, who controls the
Remarketing Agent or the Reset Agent within the meaning of either Section 15 of
the 1933 Act, or Section 20 of the Securities Exchange Act of 1934, as amended
(the "1934 Act") (the Remarketing Agent, the Reset Agent and each such person or
entity being an "Agent Indemnified Party"), as follows:
(i) from and against any and all losses, claims, damages,
liabilities and expenses whatsoever, joint or several, as incurred, to
which such Agent Indemnified Party may become subject under any applicable
federal or state law, or otherwise, and related to, arising out of, or
based on (A) the failure to have an effective Registration Statement (as
defined in the Supplemental Remarketing Agreement) under the 1933 Act
relating to the Preferred Securities or the Notes, as the case may be, if
required, or the failure to satisfy the prospectus delivery requirements
of the 1933 Act because the Company or the Trust, as the case may be,
failed to provide the Remarketing Agent with a Prospectus (as defined in
the Supplemental Remarketing Agreement) for delivery, or (B) any untrue
statement or alleged untrue statement of a material fact contained in the
9
Registration Statement or any amendment thereto (including any information
deemed to be a part of the Registration Statement at the time it became
effective pursuant to paragraph (b) of Rule 430A under the 1933 Act, if
applicable), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or (C) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the Prospectus, or any amendment or supplement thereto, or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, or (D) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary remarketing
memorandum or any final remarketing memorandum, or any amendment or
supplement thereto, or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light or the circumstances under which they were made, not misleading, or
(E) any untrue statement or alleged untrue statement of a material fact
contained in any other information (whether oral or written) or documents
(including, without limitation, any documents incorporated or deemed to be
incorporated by reference in any such information or documents) provided
by the Company or the Trust, as the case may be, for use in connection
with the remarketing of the Notes or the Preferred Securities, as the case
may be, or any of the transactions related thereto, or (F) any breach by
the Company or the Trust, as the case may be, of any of the
representations, warranties or agreements included or incorporated by
reference in this Agreement or the Supplemental Remarketing Agreement, or
(G) any failure by the Company or the Trust, as the case may be, to make
or consummate the remarketing of the Notes or the Preferred Securities, as
the case may be, (including, without limitation, any Failed Initial
Remarketing or Failed Secondary Remarketing) or the withdrawal, recession,
termination, amendment or extension of the terms of such remarketing, or
(H) any failure on the part of the Company or the Trust, as the case may
be, to comply, or any breach by the Company or the Trust, as the case may
be, of, any of the provisions included or incorporated by reference in
this Agreement, the Supplemental Remarketing Agreement, the Purchase
Contract Agreement, the Corporate Units, the Treasury Units, the Pledge
Agreement, the Indenture, the Declaration, the Preferred Securities or the
Notes (collectively, the "Operative Documents") or (I) the Remarketing of
the Preferred Securities or the Notes, as the case may be, or any other
transaction contemplated by any of the Operative Documents, or the
engagement of the Remarketing Agent or the Reset Agent pursuant to, or the
performance by the Remarketing Agent or the Reset Agent of the respective
services contemplated by, this Agreement or the Supplemental Remarketing
Agreement, whether or not the Initial Remarketing or the Secondary
Remarketing or the reset of the rate on the Preferred Securities or Notes
as contemplated herein actually occur;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever related to, arising out of or based on any matter described in
(i) above; and
10
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever related to, arising out
or based on any matter described in (i) above, whether or not such Agent
Indemnified Party is a party and whether or not such claim, action or
proceeding is initiated or brought by or on behalf of the Company or the
Trust, as the case may be, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that the Company and the Trust shall not be liable under
clause (i) (B), (i) (C), (i) (D) or (i) (E) to the extent any such loss, claim,
damage, liability or expense arises out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and conformity with
written information furnished to the Company and the Trust by the Remarketing
Agent or the Reset Agent expressly for use in the Registration Statement (or any
amendment thereto), any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or any preliminary or final remarketing
memorandum (or any amendment or supplement thereto) or any other documents used
in connection with remarketing of the Preferred Securities or the Notes, as the
case may be; provided, further, that with respect to any untrue statement or
omission of a material fact made in any preliminary prospectus, the indemnity
agreement contained in this Section 10(a) shall not inure to the benefit of the
Remarketing Agent to the extent that any such loss, claim, damage or liability
of the Remarketing Agent occurs under the circumstance where (w) the Company or
the Trust had previously furnished copies of the Prospectus to Xxxxxxx Xxxxx,
(x) the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission of a material fact contained in the preliminary
prospectus was corrected in the Prospectus, and (y) there was not sent or given
to such person, at or prior to the written confirmation of the sale of Preferred
Securities or Notes, as the case may be, to such person, a copy of the
Prospectus and the delivery thereof would have constituted a complete defense to
such person's claim in respect of such untrue statement or omission or alleged
untrue statement or omission; provided, further, that the Company and the Trust
shall not be liable under clause (i)(G) or (i)(I) to the extent that such loss,
claim, damage, liability or expense has, by final judicial determination,
resulted from the willful misconduct, bad faith or gross negligence of the
Remarketing Agent or the Reset Agent or by their failure to fulfill, in any
material respect, their express obligations hereunder or, in the case of the
Remarketing Agent, under the Supplemental Remarketing Agreement.
Other than as set forth in Section 10(b) below, the Company and the
Trust agree that no Agent Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to the Company or the
Trust or their respective security holders or creditors relating to or arising
out of the engagement of the Remarketing Agent or the Reset Agent pursuant to,
or the performance by the Remarketing Agent or the Reset Agent of their
respective services contemplated by, this Agreement or the Supplemental
Remarketing Agreement except to the extent that any loss, claim, damage,
liability or expense is found in a final judgment by a court of competent
jurisdiction to have resulted from the willful misconduct, gross negligence or
bad faith of the Remarketing Agent or the Reset Agent, as the case may be.
The Company and the Trust agree that, without Xxxxxxx Xxxxx'x prior
written consent, it will not settle, compromise or consent to the entry of any
judgment with respect to
11
any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any action or claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 10(a)
(whether or not Xxxxxxx Xxxxx or any other Agent Indemnified Party is an actual
or potential party to such claim, action or proceeding), unless such settlement,
compromise or consent (i) includes an unconditional release of each Agent
Indemnified Party from all liability arising out of such litigation,
investigation, proceeding, action or claim and (ii) does not include a statement
as to, or an admission of, fault, culpability or a failure to act by or on
behalf of an Agent Indemnified Party.
(b) The Remarketing Agent and the Reset Agent, severally and not jointly,
agree to indemnify and hold harmless the Company, its directors and its officers
who sign the Registration Statement, the Trust, each of the Trustees who signed
the Registration Statement and each person, if any, who controls the Company or
the Trust within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act (the "Company and Trust Indemnified Parties") to the same extent
as the foregoing indemnity from the Company or the Trust to the Agent
Indemnified Parties, but only with reference to information relating to such
Remarketing Agent and Reset Agent furnished to the Company and the Trust in
writing by such Remarketing Agent and Reset Agent expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto or any other documents used in connection with
the Remarketing of the Preferred Securities or the Notes, as the case may be.
Each of the Remarketing Agent and the Reset Agent agrees that,
without the Company's and the Trust's prior written consent, it will not settle,
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any action or claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 10(b)
(whether or not the Company or the Trust or any other Company and Trust
Indemnified Party is an actual or potential party to such claim, action or
proceeding), unless such settlement, compromise or consent (i) includes an
unconditional release of each Company and Trust Indemnified Party from all
liability arising out of such litigation, investigation, proceeding, action or
claim and (ii) does not include a statement as to, or an admission of fault,
culpability or a failure to act by or on behalf of a Company and Trust
Indemnified Party.
(c) If the indemnification provided for in Section 10(a) or 10(b) hereof
is for any reason unavailable to or insufficient to hold harmless any party
seeking indemnification thereunder (an "Indemnified Party") in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then the
Company and the Trust, on the one hand, and the Remarketing Agent and the Reset
Agent on the other hand, shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such Indemnified
Party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Trust on the one hand and the
Remarketing Agent and the Reset Agent on the other hand from the remarketing of
the Preferred Securities or the Notes contemplated hereby or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the Trust
on the one hand and of the Remarketing Agent and the Reset Agent on the other
hand in connection with the statements, omissions or
12
other matters which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Trust on the one hand and the
Remarketing Agent and the Reset Agent on the other hand in connection with the
remarketing of the Preferred Securities and the Notes contemplated hereby shall
be deemed to be in the same respective proportions as the aggregate liquidation
amount of the Preferred Securities or the aggregate principal amount of the
Notes which are or are to be remarketed bears to the aggregate fees actually
received by the Remarketing Agent and the Reset Agent under Section 3 hereof.
The relative fault of the Company and the Trust on the one hand and the
Remarketing Agent and the Reset Agent on the other hand (i) in the case of an
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, shall be determined by reference to, among
other things, whether such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Trust on the one hand or by the Remarketing Agent
or the Reset Agent on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission and (ii) in the case of any other action or omission shall
be determined by reference to, among other things, whether such action or
omission was taken or omitted to be taken by the Company or the Trust on the one
hand, or by the Remarketing Agent or the Reset Agent, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
prevent or correct such action or omission. The Company, the Trust, the
Remarketing Agent and the Reset Agent agree that it would not be just and
equitable if contribution pursuant to this Section 10(c) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 10(c). The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an Indemnified Party and referred to above in this Section 10(c) shall be
deemed to include any legal or other expenses incurred by such Indemnified Party
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or any such omission or alleged omission or any other such action or
omission; provided, however, that to the extent permitted by applicable law, in
no event shall the Remarketing Agent or the Reset Agent be required to
contribute any amount which, in the aggregate, exceeds the aggregate fees
received by them under Section 3 of this Agreement. No investigation or failure
to investigate by any Indemnified Party shall impair the foregoing
indemnification and contribution agreement or any rights an Indemnified Party
may have. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(d) Promptly after receipt by any Indemnified Party of written notice of
any claim or commencement of an action or proceeding with respect to which
indemnification may be sought hereunder, such party will notify the party from
whom indemnification is sought (the "Indemnifying Party") in writing of such
claim or of the commencement of such action or proceeding, but failure to so
notify the Indemnifying Party will not relieve the Indemnifying Party from any
liability which it may have to such party seeking indemnification under this
indemnification and contribution agreement, and in any event will not relieve
the Indemnifying Party from any other liability that it may have to such party.
The Indemnified Party (or Xxxxxxx Xxxxx in the case of any Agent Indemnified
Party) shall have the right to select counsel in connection with any transaction
for which any Indemnified Party may be entitled to
13
indemnification or contribution hereunder, provided that in no event shall the
Indemnifying Parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel, for all
Indemnified Parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
(e) Anything herein or in the Supplemental Remarketing Agreement to the
contrary notwithstanding, the provisions of this Section 10, and the rights of
the Company, the Trust, the Remarketing Agent, the Reset Agent and the other
Indemnified Parties hereunder, shall be in addition to, and not in limitation
of, any rights or benefits (including, without limitation, rights to
indemnification or contribution) which the Company, the Trust, the Remarketing
Agent, the Reset Agent or any other Indemnified Party may have under any other
instrument or agreement.
Section 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of laws that would require the application of the law of
any other jurisdiction.
Section 12. Term of Agreement. (a) Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided herein,
this Agreement shall remain in full force and effect from the date hereof until
the first day thereafter on which no Preferred Securities or Notes are
outstanding, or, if earlier, the Business Day immediately following the Initial
Reset Date, in the case of a Successful Initial Remarketing, or the Business Day
immediately following the Purchase Contract Settlement Date, in the case of a
Successful Secondary Remarketing. Anything herein to the contrary
notwithstanding, the provisions of Section 8 hereof and the provisions of
Sections 3, 9, 10 and 12(b) hereof shall survive any termination of this
Agreement and remain in full force and effect; provided, however, that if any
Reset Agent resigns prior to a successful remarketing, then the obligations set
forth in Section 3 hereof shall not survive the termination of this Agreement
and no fee shall be payable to such Reset Agent in such capacity.
(b) All representations and warranties included or incorporated by
reference in this Agreement, or the Supplemental Remarketing Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of
any investigation made by or on behalf of the Remarketing Agent, the Reset Agent
or any of their controlling persons, or by or on behalf of the Company or the
Purchase Contract Agent, and shall survive the remarketing of the Preferred
Securities or the Notes.
Section 13. Successors and Assigns. Except in the case of a succession
pursuant to the terms of the Purchase Contract Agreement, the rights and
obligations of the Company and the Purchase Contract Agent (both in its capacity
as Purchase Contract Agent and as attorney-in-fact) hereunder may not be
assigned or delegated to any other person without the prior written consent of
the Remarketing Agent and the Reset Agent, which consent shall not be
unreasonably withheld and, except with respect to the Purchase Contract Agent,
in connection with the appointment of a successor thereof pursuant to the
Purchase Contract Agreement. The rights and obligations of the Remarketing Agent
and the Reset Agent hereunder may not be assigned or delegated to any other
person without the prior written consent of the Company or the Trust, except
that the Remarketing Agent shall have the right to appoint additional
remarketing agents
14
as provided herein. This Agreement shall inure to the benefit of and be binding
upon the Company, the Purchase Contract Agent, the Remarketing Agent and the
Reset Agent and their respective successors and assigns and the other
Indemnified Parties (as defined in Section 10 hereof) and the successors,
assigns, heirs and legal representatives of the Indemnified Parties. The terms
"successors" and "assigns" shall not include any purchaser of Preferred
Securities or Preferred Securities merely because of such purchase.
Section 14. Headings. Section headings have been inserted in this
Agreement and the Supplemental Remarketing Agreement as a matter of convenience
of reference only, and it is agreed that such section headings are not a part of
this Agreement or the Supplemental Remarketing Agreement and will not be used in
the interpretation of any provision of this Agreement or the Supplemental
Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement or the
Supplemental Remarketing Agreement shall be held or deemed to be or shall, in
fact, be invalid, inoperative or unenforceable as applied in any particular case
in any or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy or for any other reason, then, to
the extent permitted by law, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement or the Supplemental Remarketing Agreement, as
the case may be, invalid, inoperative or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the Supplemental Remarketing
Agreement may be executed in counterparts, each of which shall be regarded as an
original and all of which shall constitute one and the same document.
Section 17. Amendments. This Agreement and the Supplemental Remarketing
Agreement may be amended by any instrument in writing signed by the parties
hereto. The Company, the Trust and the Purchase Contract Agent (except with
respect to the Indenture and the Preferred Securities, to which it is not a
party) agree that they will not enter into, cause or permit any amendment or
modification of the Purchase Contract Agreement, the Indenture, the Declaration,
the Pledge Agreement, the Preferred Securities, the Notes, the Participating
Units or any other instruments or agreements relating to the Preferred
Securities or Notes or the Participating Units which would adversely affect the
rights, duties or obligations of the Remarketing Agent or the Reset Agent
without the prior written consent of the Remarketing Agent or the Reset Agent,
as the case may be.
Section 18. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing or transmitted by any standard form of
telecommunication, including telephone or telecopy, and confirmed in writing.
All written notices and confirmations of notices by telecommunication shall be
deemed to have been validly given or made when delivered or mailed, registered
or certified mail, return receipt requested and postage prepaid. All such
notices, requests, consents or other communications shall be addressed as
follows: if to the Company, to Public Service Enterprise Group Incorporated, 00
Xxxx Xxxxx, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000 Attention: Treasurer, with a
copy to Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP, 0000 Xxxxxx
00
Xxxxxx, Xxxxxxxxxxxx, XX 00000-0000 Attention: Xxxxxx X. Xxxxxxx; if to the
Remarketing Agent or Reset Agent, to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx Xxxxx, with a copy to Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000 Attention: Xxxxxx X. Xxxxxx, Xx.; and if to the Purchase
Contract Agent, to Wachovia Bank, National Association, 00 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention: Corporate Trust Administration, or to
such other address as any of the above shall specify to the other in writing.
Section 19. Information. The Company and Trust agree to furnish the
Remarketing Agent and the Reset Agent with such information and documents as the
Remarketing Agent or the Reset Agent may reasonably request in connection with
the transactions contemplated by this Remarketing Agreement and the Supplemental
Remarketing Agreement, and make reasonably available to the Remarketing Agent,
the Reset Agent and any accountant, attorney or other advisor retained by the
Remarketing Agent or the Reset Agent such information that parties would
customarily require in connection with a due diligence investigation conducted
in accordance with applicable securities laws and cause the Company's officers,
directors, employees and accountants to participate in all such discussions and
to supply all such information reasonably requested by any such person in
connection with such investigation.
16
IN WITNESS WHEREOF, each of the Company, the Trust, the Purchase
Contract Agent and the Remarketing Agent has caused this Agreement to be
executed in its name and on its behalf by one of its duly authorized signatories
as of the date first above written.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
By:
-----------------------------------------
Name:
Title:
PSEG FUNDING TRUST I
By:
-----------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------
Name:
Title:
WACHOVIA BANK,
not individually but solely as
Purchase Contract Agent and
as attorney-in-fact for the
holders of the Purchase Contracts
By:
---------------------------------
Name:
Title:
17
Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated ______________, ____ among Public
Service Enterprise Group Incorporated, a New Jersey corporation (the "Company"),
PSEG Funding Trust I, a Delaware statutory trust (the "Trust"), Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing Agent"), and Wachovia
Bank, a banking association organized under the laws of the United States, as
Purchase Contract Agent and attorney-in-fact for the Holders of the Purchase
Contracts (as such terms are defined in the Purchase Contract Agreement referred
to in Schedule I hereto).
NOW, THEREFORE, for and in consideration of the covenants herein made, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
B. 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Remarketing Agreement
dated as of September 10, 2002 (the "Remarketing Agreement") among the Company,
the Trust, the Purchase Contract Agent and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated or, if not defined in the Remarketing Agreement, the meanings
assigned to them in the Purchase Contract Agreement (as defined in Schedule I
hereto).
2. Registration Statement and Prospectus. [IN THE EVENT THAT A
REGISTRATION STATEMENT IS REQUIRED, INSERT THE FOLLOWING: The Company and the
Trust have filed with the Securities and Exchange Commission, and there has
become effective, a registration statement on Form S-3, including a prospectus,
relating to the Securities (as such term is defined on Schedule I hereto). Such
Registration Statement, as amended, and including the information deemed to be a
part thereof pursuant to Rule 430A under the Securities Act of 1933, as amended
(the "1933 Act"), and the documents incorporated or deemed to be incorporated by
reference therein, are hereinafter called, collectively, the "Registration
Statement"; (the related preliminary prospectus dated ____________, including
the documents incorporated or deemed to be incorporated by reference therein,
[and preliminary prospectus supplemented dated __________] are hereinafter
called, [collectively] the "preliminary prospectus";] and the related prospectus
dated _____________, including the documents incorporated or deemed to be
incorporated by reference therein, [and prospectus supplement dated _________]
are hereinafter called, [collectively,] the "Prospectus." The Company and the
Trust, as the case may be, have provided copies of the Registration Statement [,
the preliminary prospectus] and the Prospectus to the Remarketing Agent, and
hereby consents to the use of the [preliminary prospectus] and the Prospectus in
connection with the remarketing of the Securities.] [IN THE EVENT THAT A
REGISTRATION STATEMENT IS NOT POSSIBLE OR NOT REQUIRED, INSERT THE FOLLOWING:
The Company and the Trust have provided to the Remarketing Agent, for use in
connection with remarketing of the Securities (as such term is defined on
Schedule I hereto), a [preliminary remarketing memorandum and] remarketing
memorandum and [describe other materials, if any]. Such remarketing memorandum
18
(including the documents incorporated or deemed to be incorporated by reference
therein, [and] [describe other materials] are hereinafter called, collectively,
the "Prospectus," [and such preliminary marketing memorandum (including the
documents incorporated or deemed to be incorporated by reference therein) is
hereinafter called a "preliminary prospectus")]. The Company and the Trust each
hereby consent to the use of the Prospectus [and the preliminary prospectus] in
connection with the remarketing of the Securities]. All references in this
Agreement to amendments or supplements to the [Registration Statement] [the
preliminary prospectus] or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of 1934, as amended
(the "1934 Act"), which is incorporated or deemed to be incorporated by
reference in the [Registration Statement] [the preliminary prospectus] or the
Prospectus, as the case may be.
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the Underwriting Agreement
(other than Section 2, Section 4, Section 6, Section 7, Section 8, Section 9 and
Section 10 thereof) are incorporated herein by reference, mutatis mutandis, and
the Company and the Trust, as the case may be, hereby make the representations
and warranties, and agrees to comply with the covenants and obligations, set
forth in the provisions of the Underwriting Agreement incorporated by reference
herein, as modified by the provisions of Section 3(b) hereof.
(b) With respect to the provisions of the Underwriting Agreement
incorporated herein, for the purposes hereof, (i) all references therein to the
"Underwriter" or "Underwriters" shall be deemed to refer to the Remarketing
Agent and all references to the "Representative" or the "Representatives" shall
be deemed to refer to the Remarketing Agent; (ii) all references therein to the
"Securities" or "Initial Securities" shall be deemed to refer to the Securities
as defined herein; (iii) all references therein to the "Closing Time" shall be
deemed to refer to the Remarketing Closing Date specified in Schedule I hereto;
(iv) all references therein to the ["Registration Statement"] [the "preliminary
prospectus"] or the "Prospectus" shall be deemed to refer to the [Registration
Statement] [the preliminary prospectus] and the Prospectus, respectively, as
defined herein; (v) all references therein to this "Agreement," the
"Underwriting Agreement," "hereof," "herein" and all references of similar
import, shall be deemed to mean and refer to this Supplemental Remarketing
Agreement; (vi) all references therein to "the date hereof," "the date of this
Agreement" and all similar references shall be deemed to refer to the date of
this Supplemental Remarketing Agreement; (vii) all references therein to any
"Date of Delivery" shall be disregarded; and (viii) [other changes, including
changes relating to the offer and sale of the Securities in connection with the
Remarketing without registration under the 1933 Act in reliance upon an
exemption therefrom (including the exemption afforded by Rule 144A)].]
4. Remarketing. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth or incorporated by reference
herein and in the Remarketing Agreement, the Remarketing Agent agrees to use its
reasonable efforts to remarket, in the manner set forth in Section 2(b) of the
Remarketing Agreement, the aggregate liquidation amount or aggregate principal
amount, as the case may be, of Securities set forth in Schedule I hereto at a
purchase price not less than 100% of the [Minimum Initial Remarketing Price]
[aggregate liquidation amount of the Preferred Securities or the principal
amount of the Notes
19
plus deferred and unpaid distributions or interest, if any, on the Securities].
In connection therewith, the registered holder or holders thereof agree, in the
manner specified in Section 5 hereof, to pay to the Remarketing Agent a
Remarketing Fee equal to an amount not exceeding 25 basis points (0.25%) of [the
Minimum Initial Remarketing Price] [such aggregate liquidation amount or
aggregate principal amount of the Securities plus deferred and unpaid
distributions or interest, if any, thereon, as the case may be,] payable by
deduction from any amount received in connection from such [Initial] [Secondary]
Remarketing in excess of the [Minimum Initial Remarketing Price] [aggregate
liquidation amount or aggregate principal amount of the Securities plus deferred
and unpaid distributions or interest, if any, thereon, as the case may be]. The
right of each holder of Securities to have Securities tendered for purchase
shall be limited to the extent set forth in the last sentence of Section 2(b) of
the Remarketing Agreement (which is incorporated by reference herein). As more
fully provided in Section 2 (c) of the Remarketing Agreement (which is
incorporated by reference herein), the Remarketing Agent is not obligated to
purchase any Securities in the remarketing or otherwise, and neither the Company
nor the Remarketing Agent shall be obligated in any case to provide funds to
make payment upon tender of Securities for remarketing.
5. Delivery and Payment. Delivery of payment for the remarketed Securities
by the purchasers thereof identified by the Remarketing Agent and payment of the
Remarketing Fee shall be made on the Remarketing Closing Date at the location
and time specified in Schedule I hereto (or such later date not later than five
Business Days after such date as the Remarketing Agent shall designate), which
date and time may be postponed by agreement between the Remarketing Agent, the
Trust and the Company. Delivery of the remarketed Securities and payment of the
Remarketing Fee shall be made to the Remarketing Agent against payment by the
respective purchasers of the remarketed Securities of the consideration therefor
as specified herein, which consideration shall be paid to the Collateral Agent
for the account of the persons entitled thereto by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
immediately available funds or in immediately available funds by wire transfer
to an account or accounts designated by the Collateral Agent.
If the Securities are not represented by a Global Security held by or on
behalf of The Depository Trust Company, certificates for the Securities shall be
registered in such names and denominations as the Remarketing Agent may request
not less than one full Business Day in advance of the Remarketing Closing Date,
and the Company, the Trust, the Collateral Agent and the registered holder or
holders thereof agree to have such certificates available for inspection,
packaging and checking by the Remarketing Agent in New York, New York not later
than 1:00 p.m. on the Business Day prior to the Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests, consents or
other communications given or made hereunder or pursuant hereto shall be made in
writing or transmitted by any standard form of telecommunication, including
telephone or telecopy, and confirmed in writing. All written notices and
confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
Company, to Public Service Enterprise Group Incorporated, 00 Xxxx Xxxxx, X.X.
Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000 Attention: Treasurer, with a copy to Xxxxxxx
Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, 0000 Xxxxxx
00
Xxxxxx, Xxxxxxxxxxxx, XX 00000-0000 Attention: Xxxxxx X. Xxxxxxx; if to the
Trust, to PSEG Funding Trust I, 00 Xxxx Xxxxx, X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx
00000, Attention: Treasurer; if to the Remarketing Agent or Reset Agent, to
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at 0 Xxxxx Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx, with a copy to Sidley Xxxxxx
Xxxxx & Xxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx
X. Xxxxxx, Xx.; and if to the Purchase Contract Agent, to Wachovia Bank,
National Association, at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000,
Attention: Corporate Trust Administration, or to such other address as any of
the above shall specify to the other in writing.
7. Conditions to Obligations of Remarketing Agent. Anything herein to the
contrary notwithstanding, the parties hereto agree (and the holders and
beneficial owners of the Securities will be deemed to agree) that the
obligations of the Remarketing Agent under this Agreement and the Remarketing
Agreement are subject to the satisfaction of the conditions set forth in Section
7 of the Remarketing Agreement (which are incorporated herein by reference), and
to the satisfaction, on the Remarketing Closing Date, of the conditions
incorporated by reference herein from Section 5 of the Underwriting Agreement as
modified by Section 3(b) hereof (including, without limitation, the delivery of
opinions of counsel, officers' certificates and accountants' comfort letters in
form and substance satisfactory to the Remarketing Agent, the accuracy as of the
Remarketing Closing Date of the representations and warranties of the Company
and the Trust included and incorporated by reference herein and the performance
by the Company and the Trust of their obligations under the Remarketing
Agreement and this Agreement as and when required hereby and thereby). In
addition, anything herein or in the Remarketing Agreement to the contrary
notwithstanding, the Remarketing Agreement and this Agreement may be terminated
by the Remarketing Agent, by notice to the Company and the Trust at any time
prior to the time of settlement on the Remarketing Closing Date, if any of the
events or conditions set forth in Section 9 of the Underwriting Agreement, as
modified by Section 3(b) hereof, shall have occurred or shall exist.
8. Indemnity and Contribution. Anything herein to the contrary
notwithstanding, the Remarketing Agent shall be entitled to indemnity and
contribution on the terms and conditions set forth in the Remarketing Agreement.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Trust and the Remarketing Agent.
Very truly yours,
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
By:
-----------------------------------------
Name:
Title:
PSEG FUNDING TRUST I
By:
-----------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-----------------------------------
Name:
Title:
[Add other Remarketing Agents, if any]
WACHOVIA BANK, NATIONAL ASSOCIATION
not individually but solely as Purchase
Contract Agent and as attorney-in-fact
for the holders of the Purchase Contracts
By:
-----------------------------------
Name:
Title:
22
SCHEDULE I
Securities subject to remarketing: ($460,000,000 aggregate liquidation
amount of 6.25% Preferred Securities of PSEG Funding Trust I) ($460,000,000
aggregate principal amount of 6.25% Senior Deferrable Notes of Public Service
Enterprise Group Incorporated).
Purchase Contract Agreement, dated as of September 10, 2002 (the "Purchase
Contract Agreement") by and between Public Service Enterprise Group
Incorporated, a Delaware corporation, and Wachovia Bank, National Association, a
banking association organized under the laws of the United States.
[Minimum Initial Remarketing Price]
[Aggregate Liquidation Amount or Aggregate Principal Amount of Securities:
$_________________]
Remarketing Closing Date, Time and Location:
23
