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SUPPLEMENTAL MORTGAGE
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Supplemental Indenture
DATED MAY 1, 1994
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SUPPLEMENTAL TO
FIRST AND REFUNDING MORTGAGE
DATED AUGUST 1, 1924
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PUBLIC SERVICE ELECTRIC AND GAS COMPANY
TO
FIRST FIDELITY BANK, NATIONAL ASSOCIATION,
TRUSTEE
765 BROAD STREET
NEWARK, NEW JERSEY 07101
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PROVIDING FOR THE ISSUE OF
FIRST AND REFUNDING MORTGAGE BONDS,
POLLUTION CONTROL Series P
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RECORD IN MORTGAGE BOOK AND RETURN TO:
JAMES T. FORAN, ESQ.
80 PARK PLAZA, T5B
P.O. BOX 570
NEWARK, N.J. 07101
This instrument prepared by
EDWARD C. FEDAK
(EDWARD C. FEDAK, ESQ.)
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TABLE OF CONTENTS
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PAGE
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RECITALS...................................................... 1
FORM OF BOND.................................................. 4
FORM OF CERTIFICATE OF AUTHENTICATION......................... 8
GRANTING CLAUSES.............................................. 8
ARTICLE I.
BONDS OF THE POLLUTION CONTROL Series P.
DESCRIPTION OF POLLUTION CONTROL Series P..................... 10
ARTICLE II.
REDEMPTION OF BONDS--POLLUTION CONTROL Series P.
SECTION 2.01. Redemption--Redemption Prices................. 11
SECTION 2.02. Notice of Redemption.......................... 13
SECTION 2.03. Interest on Called Bonds to Cease............. 14
SECTION 2.04. Bonds Called in Part.......................... 14
SECTION 2.05. Provisions of Indenture not Applicable........ 15
ARTICLE III.
MISCELLANEOUS.
SECTION 3.01. Authentication of Bonds of Pollution Control
Series P.................................... 15
SECTION 3.02. Additional Restrictions on Authentication of
Additional Bonds Under Indenture............ 15
SECTION 3.03. Restriction on Dividends...................... 15
SECTION 3.04. Use of Facsimile Seal and Signatures.......... 16
SECTION 3.05. Effective Period of Supplemental Indenture.... 16
SECTION 3.06. Credits with Respect to Payments.............. 16
SECTION 3.07. Time for Making of Payment.................... 17
SECTION 3.08. Effect of Approval of Board of Regulatory
Commissioners of the State of New Jersey.... 17
SECTION 3.09. Execution in Counterparts..................... 17
Acknowledgments............................................... 18
Certificate of Residence...................................... 20
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SUPPLEMENTAL INDENTURE, dated the 1st day of May, 1994, for convenience
of reference and effective from the time of execution and delivery hereof,
between PUBLIC SERVICE ELECTRIC AND GAS COMPANY, a corporation organized under
the laws of the State of New Jersey, hereinafter called the "Company", party
of the first part, and FIRST FIDELITY BANK, NATIONAL ASSOCIATION, a national
banking association organized under the laws of the United States of America,
as Trustee under the indenture dated August 1, 1924, below mentioned,
hereinafter called the "Trustee", party of the second part.
WHEREAS, on July 25, 1924, the Company executed and delivered to Fidelity
Union Trust Company (now known as First Fidelity Bank, National Association),
a certain indenture dated August 1, 1924 (hereinafter called the "Indenture"),
to secure and to provide for the issue of First and Refunding Mortgage Gold
Bonds of the Company; and
WHEREAS, the Indenture has been recorded in the following counties of the
State of New Jersey, in the offices, and therein in the books and at the pages,
as follows:
PAGE
COUNTY OFFICE BOOK NUMBER NUMBER
- ------ ------ ----------- -------
Atlantic Clerk's 1955 of Mortgages 160
Bergen Clerk's 94 of Chattel Mortgages 123 etc.
693 of Mortgages 88 etc.
Burlington Clerk's 52 of Chattel Mortgages Folio 8 etc.
177 of Mortgages Folio 354 etc.
Camden Register's 45 of Chattel Mortgages 184 etc.
239 of Mortgages 1 etc.
Cumberland Clerk's 786 of Mortgages 638 & c.
Essex Register's 437 of Chattel Mortgages 1-48
T-51 of Mortgages 341-392
Gloucester Clerk's 34 of Chattel Mortgages 123 etc.
142 of Mortgages 7 etc.
Hudson Register's 453 of Chattel Mortgages 9 etc.
1245 of Mortgages 484 etc.
Hunterdon Clerk's 151 of Mortgages 344
Mercer Clerk's 67 of Chattel Mortgages 1 etc.
384 of Mortgages 1 etc.
Middlesex Clerk's 113 of Chattel Mortgages 3 etc.
437 of Mortgages 294 etc.
Monmouth Clerk's 951 of Mortgages 291 & c.
Morris Clerk's N-3 of Chattel Mortgages 446 etc.
F-10 of Mortgages 269 etc.
Ocean Clerk's 1809 of Mortgages 40
Passaic Register's M-6 of Chattel Mortgages 178 etc.
R-13 of Mortgages 268 etc.
Salem Clerk's 267 of Mortgages 249 & c.
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PAGE
COUNTY OFFICE BOOK NUMBER NUMBER
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Somerset Clerk's 46 of Chattel Mortgages 207 etc.
N-10 of Mortgages 1 etc.
Sussex Clerk's 123 of Mortgages 10 & c.
Union Register's 128 of Chattel Mortgages 28 & c.
664 of Mortgages 259 etc.
Warren Clerk's 124 of Mortgages 141 etc.
and
WHEREAS, the Indenture has also been recorded in the following counties
of the Commonwealth of Pennsylvania, in the offices, and therein in the books
and at the pages, as follows:
PAGE
COUNTY OFFICE BOOK NUMBER NUMBER
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Adams Recorder's 22 of Mortgages 105
Armstrong Recorder's 208 of Mortgages 381
Bedford Recorder's 90 of Mortgages 917
Blair Recorder's 671 of Mortgages 430
Cambria Recorder's 407 of Mortgages 352
Cumberland Recorder's 500 of Mortgages 136
Franklin Recorder's 285 of Mortgages 373
Huntingdon Recorder's 128 of Mortgages 47
Indiana Recorder's 197 of Mortgages 281
Lancaster Recorder's 984 of Mortgages 1
Montgomery Recorder's 5053 of Mortgages 1221
Westmoreland Recorder's 1281 of Mortgages 198
York Recorder's 31-V of Mortgages 446
and
WHEREAS, the Indenture granted, bargained, sold, aliened, remised,
released, conveyed, confirmed, assigned, transferred and set over unto the
Trustee certain property of the Company, more fully set forth and described in
the Indenture, then owned or which might thereafter be acquired by the Company;
and
WHEREAS, the Company, by various supplemental indentures, supplemental
to the Indenture, the last of which was dated March 1, 1994 (No.2), has
granted, bargained, sold, aliened, remised, released, conveyed, confirmed,
assigned, transferred and set over unto the Trustee certain property of the
Company acquired by it after the execution and delivery of the Indenture; and
WHEREAS, since the execution and delivery of said supplemental indenture
dated March 1, 1994 (No.2), the Company has acquired property
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which in accordance with the provisions of the Indenture, is subject to the
lien thereof and the Company desires to confirm such lien; and
WHEREAS, the Indenture has been amended or supplemented from time to
time; and
WHEREAS, it is provided in the Indenture that no bonds other than those
of the 5 1/2% Series due 1959 therein authorized may be issued thereunder
unless a supplemental indenture providing for the issue of such additional
bonds shall have been executed and delivered by the Company to the Trustee; and
WHEREAS, the New Jersey Economic Development Authority (the "Authority")
is making provision for the issuance and sale of its Pollution Control Revenue
Bonds, 1994 Series A (Public Service Electric and Gas Company Project) (the
"1994 Series A Authority Bonds") the proceeds of which will be loaned to the
Company to finance a portion of the Company's 95% share of the costs of certain
pollution control facilities (the "Project") at the Hope Creek Generating
Station (the "Station") in Lower Alloways Creek Township, Salem County, New
Jersey; and
WHEREAS, the 1994 Series A Authority Bonds are to be issued under an
Indenture of Trust dated as of May 1, 1994 (the "Authority Indenture"), between
the Authority and First Fidelity Bank, National Association, as trustee (the
"Authority Trustee"); and
WHEREAS, the Company has entered into a Pollution Control Facilities Loan
Agreement dated as of May 1, 1994, as supplemented (the "Agreement"), with the
Authority providing, among other things, for the loan by the
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Authority to the Company of funds to finance a portion of the costs of the
Project, and for the the issuance by the Company to the Authority Trustee, as
assignee of the Authority, of First and Refunding Mortgage Bonds of the Company
to evidence the Company's obligation to repay said loan, and for such purposes
the Company desires to provide for the issue of $100,000,000 aggregate
principal amount of bonds secured by the Indenture of a series to be designated
as "First and Refunding Mortgage Bonds, Pollution Control Series P"
(hereinafter sometimes called "Pollution Control Series P"); and
WHEREAS, the text of the bonds of the Pollution Control Series P and of
the certificate of authentication to be borne by the bonds of the Pollution
Control Series P shall be substantially of the following tenor:
[FORM OF BOND]
This Bond is not transferable except as provided in the Indenture of Trust
dated as of May 1, 1994 between the New Jersey Economic Development Authority
and First Fidelity Bank, National Association, as trustee (the "Authority
Indenture").
REGISTERED REGISTERED
NUMBER AMOUNT
R- $100,000,000
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
FIRST AND REFUNDING MORTGAGE BOND,
POLLUTION CONTROL Series P
Public Service Electric and Gas Company (hereinafter called the
"Company"), a corporation of the State of New Jersey, for value received,
hereby promises to pay to First Fidelity Bank, National Association, as trustee
under the Authority Indenture, or registered assigns, the principal sum of One
Hundred Million Dollars, on May 1, 2032, and to pay interest thereon from the
date hereof, at the rate of 6.40% per annum, and until payment of said
principal sum, such interest to be payable May 1 and November 1 in each year.
Both the principal hereof and interest hereon shall be paid at the
principal office of First Fidelity Bank, National Association in the City of
Newark, State of New Jersey, or at the corporate trust office of any paying
agent appointed by the Company, in such coin or currency of the United States
of America as at the time of payment shall constitute legal tender for the
payment of public and private debts.
This Bond is one of the First and Refunding Mortgage Bonds of the Company
issued and to be issued under and pursuant to, and all equally secured by, an
indenture of mortgage or deed of trust dated August 1, 1924, between the
Company and First Fidelity Bank, National Association (formerly known as
Fidelity Union Trust Company), a national banking association of the United
States of America, as Trustee, as supplemented and amended by the supplemental
indentures thereto, including the supplemental indenture dated May 1, 1994.
This Bond is one of the Bonds of the Pollution Control Series P, which series
is limited to the aggregate principal amount of $100,000,000 and is issued
pursuant to said supplemental indenture dated May 1, 1994.
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Reference is hereby made to said indenture and all supplements thereto for a
specification of the principal amount of Bonds from time to time issuable
thereunder, and for a description of the properties mortgaged and conveyed or
assigned to said Trustee or its successors, the nature and extent of
the security, and the rights of the holders of said Bonds and any coupons
appurtenant thereto, and of the Trustee in respect of such security.
In and by said indenture, as amended and supplemented, it is provided that
with the written approval of the Company and the Trustee, any of the provisions
of said indenture may from time to time be eliminated or modified and other
provisions may be added thereto provided the change does not alter the annual
interest rate, redemption price or date, date of maturity or amount payable on
maturity of any then outstanding Bond or conflict with the Trust Indenture Act
of 1939 as then in effect, and provided the holders of 85% in principal amount
of the Bonds secured by said indenture and then outstanding (including, if such
change affect the Bonds of one or more series but less than all series then
outstanding, a like percentage of the then outstanding Bonds of each series
affected by such change, and excluding Bonds owned or controlled by the Company
or by the parties owning at least 10% of the outstanding voting stock of the
Company, as more fully specified in said indenture) consent in writing thereto,
all as more fully set forth in said indenture, as amended and supplemented.
First and Refunding Mortgage Bonds issuable under said indenture are
issuable in series, and the Bonds of any series may be for varying principal
amounts and in the form of coupon Bonds and of registered Bonds without
coupons, and the Bonds of any one series may differ from the Bonds of any other
series as to date, maturity, interest rate and otherwise, all as in said
indenture provided and set forth. The Bonds of the Pollution Control Series P,
in which this Bond is included, are designated "First and Refunding Mortgage
Bonds, Pollution Control Series P".
In case of the happening of an event of default as specified in said
indenture and in the supplemental indenture dated March 1, 1942 supplemental
thereto, the principal sum of the Bonds of this issue may be declared or may
become due and payable forthwith, in the manner and with the effect in said
indenture provided.
The Bonds of this series are subject to redemption as provided in said
supplemental indenture dated May 1, 1994.
This Bond is transferable, but only as provided in the Indenture of Trust
dated as of May 1, 1994, made by the New Jersey Economic Development
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Authority to First Fidelity Bank, National Association, as trustee, upon
surrender hereof, by the registered owner in person or by attorney duly
authorized in writing, at the principal office of the Trustee; upon any such
transfer a new Bond similar hereto will be issued to the transferee. No service
charge shall be made for any such transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto. The Company and the Trustee and any paying agent
may deem and treat the person in whose name this Bond is registered as the
absolute owner hereof for the purpose of receiving payment of or on account of
the principal hereof and the interest hereon and for all other purposes; and
neither the Company nor the Trustee nor any paying agent shall be affected by
any notice to the contrary.
The Bonds of this series are issuable only in fully registered form, in
any denomination authorized by the Company.
No recourse under or upon any obligation, covenant or agreement contained
in said indenture or in any indenture supplemental thereto, or in any Bond or
coupon issued thereunder, or because of any indebtedness arising thereunder,
shall be had against any incorporator, or against any past, present or future
stockholder, officer or director, as such, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise; it being expressly agreed and understood that said indenture, any
indenture supplemental thereto and the obligations issued thereunder, are
solely corporate obligations, and that no personal liability whatever shall
attach to, or be incurred by, such incorporators, stockholders, officers or
directors, as such, of the Company, or of any successor corporation, or any of
them, because of the incurring of the indebtedness thereby authorized, or under
or by reason of any of the obligations, covenants or agreements contained in
the indenture or in any indenture supplemental thereto or in any of the Bonds
or coupons issued thereunder, or implied therefrom.
This Bond shall not be entitled to any security or benefit under said
indenture, as amended and supplemented, and shall not become valid or
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obligatory for any purpose, until the certificate of authentication, hereon
endorsed, shall have been signed by First Fidelity Bank, National Association,
as Trustee, or by its successor in trust under said indenture.
IN WITNESS WHEREOF, the Company has caused this Bond to be duly executed
by its proper officers under its corporate seal.
Dated
PUBLIC SERVICE ELECTRIC AND GAS
COMPANY,
By
(Vice) President
(Seal)
Attest:
(Assistant) Secretary
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[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated therein which are
described in the within-mentioned indenture and supplemental indenture dated
May 1, 1994, as secured thereby.
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, TRUSTEE,
BY
Authorized Signatory
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WHEREAS, the execution and delivery of this supplemental indenture have
been duly authorized by the Board of Directors of the Company; and
WHEREAS, the Company represents that all things necessary to make the
bonds of the Pollution Control Series P hereinafter described, when duly
authenticated by the Trustee and issued by the Company, valid, binding and
legal obligations of the Company, and to make this supplemental indenture a
valid and binding agreement supplemental to the Indenture, have been done and
performed:
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that the Company,
in consideration of the premises and the execution and delivery by the Trustee
of this supplemental indenture, and in pursuance of the covenants and
agreements contained in the Indenture and for other good and valuable
consideration, the receipt of which is hereby acknowledged, has granted,
bargained, sold, aliened, remised, released, conveyed, confirmed, assigned,
transferred and set over, and by these presents does grant, bargain, sell,
alien, remise, release, convey, confirm, assign, transfer and set over unto the
Trustee, its successors and assigns, forever, all the right, title and interest
of the Company in and to all property of every kind and description (except
cash, accounts and bills receivable and all merchandise bought, sold or
manufactured for sale in the ordinary course of the Company's business,
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stocks, bonds or other corporate obligations or securities, other than such as
are described in Part V of the Granting Clauses of the Indenture, not acquired
with the proceeds of bonds secured by the Indenture, and except as in the
Indenture and herein otherwise expressly excluded) acquired by the Company
since the execution and delivery of the supplemental indenture dated March 1,
1994 (No.2), supplemental to the Indenture (except any such property duly
released from, or disposed of free from, the lien of the Indenture, in
accordance with the provisions thereof) and all such property which at any time
hereafter may be acquired by the Company;
All of which property it is intended shall be included in and granted by
this supplemental indenture and covered by the lien of the Indenture as
heretofore and hereby amended and supplemented;
UNDER AND SUBJECT to any encumbrances or mortgages existing on property
acquired by the Company at the time of such acquisition and not heretofore
discharged of record; and
SUBJECT, also, to the exceptions, reservations and provisions in the
Indenture and in this supplemental indenture recited, and to the liens,
reservations, exceptions, limitations, conditions and restrictions imposed by
or contained in the several deeds, grants, franchises and contracts or other
instruments through which the Company acquired or claims title to the aforesaid
property; and SUBJECT, also, to existing leases, to liens on easements or
rights of way, to liens for taxes, assessments and governmental charges not in
default or the payment of which is deferred, pending appeal or other contest
by legal proceedings, pursuant to Section 4 of Article Five of the Indenture,
or the payment of which is deferred pending billing, transfer of title or final
determination of amount, to easements for alleys, streets, highways, rights of
way and railroads that may run across or encroach upon the said property, to
joint pole and similar agreements, to undetermined liens and charges, if any,
incidental to construction, and other encumbrances permitted by the Indenture
as theretofore and hereby amended and supplemented;
TO HAVE AND TO HOLD the property hereby conveyed or assigned, or intended
to be conveyed or assigned, unto the Trustee, its successor or successors and
assigns, forever;
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IN TRUST, NEVERTHELESS, upon the terms, conditions and trusts set forth
in the Indenture as heretofore and hereby amended and supplemented, to the end
that the said property shall be subject to the lien of the Indenture as
heretofore and hereby amended and supplemented, with the same force and effect
as though said property had been included in the Granting Clauses of the
Indenture at the time of the execution and delivery thereof;
AND THIS SUPPLEMENTAL INDENTURE FURTHER WITNESSETH that for the
considerations aforesaid, it is hereby covenanted between the Company and the
Trustee as follows:
ARTICLE I.
BONDS OF THE POLLUTION CONTROL Series P.
The series of bonds authorized by this supplemental indenture to be issued
under and secured by the Indenture shall be designated "First and Refunding
Mortgage Bonds, Pollution Control Series P"; shall be limited to the aggregate
principal amount of $100,000,000; shall be issued initially to the Authority
Trustee, as assignee of the Authority, to evidence the Company's obligation to
repay the loan to finance a portion of the costs of the Project made pursuant
to the Agreement; and shall mature and bear interest as set forth in the form
of bond hereinbefore described; provided, however, that the Company shall
receive certain credits against principal and interest obligations as set forth
in Section 3.06 hereof. The date of each bond of the Pollution Control Series
P shall be the semi-annual interest payment date next preceding the date of
authentication, unless such date of authentication be an interest payment date,
in which case the date shall be the date of authentication, or unless such date
of authentication be prior to the first semi-annual interest payment date, in
which case the date shall be May 1, 1994.
Bonds of the Pollution Control Series P shall be issued as fully
registered bonds in any denomination authorized by the Company. Interest on
bonds of the Pollution Control Series P shall be payable semi-annually on May
1 and November 1 of each year, payable initially on November 1, 1994, and shall
be payable as to both principal and interest in such coin or currency of the
United States of America as at the time of payment shall constitute
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legal tender for the payment of public and private debts, at the principal
office of the Trustee, or at the corporate trust office of any paying agent
appointed by the Company.
Bonds of the Pollution Control Series P shall be transferable (but only
as provided in the Authority Indenture) upon surrender thereof for cancellation
by the registered owner in person or by attorney duly authorized in writing at
said office of the Trustee.
The Company hereby waives any right to make a charge for any transfer of
bonds of the Pollution Control Series P, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto.
ARTICLE II.
REDEMPTION OF BONDS--POLLUTION CONTROL Series P.
SECTION 2.01. Redemption--Redemption Prices. Bonds of the Pollution
Control Series P shall be subject to redemption prior to maturity, but if in
part only in integral multiples of $5,000, under the conditions and upon the
payment of the amounts specified in the following subsections, together in each
case with interest accrued to the redemption date:
(a) at the option of the Company, on any date on or after May 1,
2004, either as a whole or in part, at the following redemption prices,
expressed in percentages of the principal amount of the bonds to be
redeemed:
REDEMPTION PERIOD REDEMPTION PRICE
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May 1, 2004 through April 30, 2005..................... 102%
May 1, 2005 through April 30, 2006..................... 101%
May 1, 2006 and thereafter........................... 100%
(b) at the option of the Company, as a whole at any time at 100% of
the principal amount thereof, if any of the following events shall have
occurred and if, within one year of the occurrence of any of the following
events, the Company shall have given evidence to the Trustee and the
Authority Trustee, in each case by a certificate signed by the President
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or a Vice President, and by the Secretary or an Assistant Secretary, of
the Company to the effect that one of such events has occurred and is
continuing, and describing the same:
(1) (i) the Station or a substantial portion of the facilities of
the Project shall have been damaged or destroyed to such extent that (a)
the Station or such facilities cannot be reasonably restored within a
period of six months from the date of such damage or destruction to
the condition thereof immediately preceding such damage or
destruction, or (b) the Company is thereby prevented or likely to be
prevented from carrying on its normal operation of the Station or such
facilities for a period of six months from the date of such damage or
destruction, or (c) it would not be practicable or desirable to
rebuild, repair or restore the Station or such facilities or (ii) the
Salem Nuclear Generating Station, adjacent to the Station, or a
substantial portion of the Salem Nuclear Generating Station shall have
been damaged or destroyed to such extent that the Company is thereby
prevented or likely to be prevented from carrying on its normal operation
of the Station or such facilities for a period of six months from the date
of such damage or destruction; or
(2) title to, or the temporary use of, all or substantially all
of the Station or a substantial portion of the facilities of the Project
shall have been taken or condemned by a competent authority which taking
or condemnation results or is likely to result in the Company being
thereby prevented or likely to be prevented from carrying on its normal
operation of Station or such facilities for a period of six months; or
(3) changes in the cost or availability of raw materials,
operating supplies, or facilities or technological or other changes
have made the continued operation of all or substantially all of the
Station or a substantial portion of the facilities of the Project
uneconomical; or
(4) any laws, rules, regulations or orders of any governmental or
regulatory entity shall require a shutdown of the Station or a substantial
portion of the facilities of the Project or prevent the Company from
carrying on its normal operation of the Station or the facilities of the
Project, in each case for a period of six months.
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(c) in, whole or in part (if, in the opinion of nationally
recognized bond counsel, such partial redemption will preserve the
exclusion from gross income for Federal income tax purposes of interest
on the 1994 Series B Authority Bonds) at 100% of the principal amount
thereof to be redeemed, within 180 days after a "final determination"
(i.e., the issuance of a published or private ruling or technical
advice) of the Internal Revenue Service or a judicial decision in a
proceeding by any court of competent jurisdiction in the United States
(from which ruling, advice or decision no further right of appeal
exists), in all cases in which the Company has participated or been a
party or has been given an opportunity to participate and has failed to
do so (no such decree or judgment by any court or action by the Internal
Revenue Service to be considered final unless the owner of the 1994
Series B Authority Bonds involved in such proceeding or action has given
the Company and the Authority Trustee prompt written notice of the
commencement thereof and offered the Company, at the Company's expense,
the opportunity to control the defense thereof) that, as a result of a
failure by the Company to observe any covenant, agreement, representation
or warranty in the Agreement, the interest payable on the 1994 Series B
Authority Bonds is includable in the gross income for Federal income tax
purposes of the holder thereof, other than a "substantial user" of the
Project or a "related person" as provided in Section 147(a) of the
Internal Revenue Code of 1986.
SECTION 2.02. Notice of Redemption. (a) The election of the Company under
subsection (a) or (b) of Section 2.01 hereof to redeem any of the bonds of the
Pollution Control Series P shall be evidenced by a resolution of the Board of
Directors of the Company calling for redemption on a stated date of all or, in
the case of subsection (a), a stated principal amount thereof. To exercise its
option to redeem the bonds of the Pollution Control Series P under subsection
(a) or (b) of Section 2.01 hereof, the Company shall deliver to the Trustee,
the Authority and the Authority Trustee a certified copy of said resolution
calling all or, in the case of subsection (a), a stated principal amount of the
bonds of the Pollution Control Series P for redemption on a date not less than
40 days nor more than 90 days from the date said resolution is delivered. The
delivery to the Authority Trustee of
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a certified copy of such resolution shall constitute notice to the Authority
Trustee of the redemption referred to therein, on the terms specified therein.
The Company shall on or before such redemption date deposit with the Trustee,
as paying agent hereunder, the total applicable redemption price of all the
bonds so called, with interest accrued thereon to the redemption date, less any
credits to which the Company may be entitled pursuant to Section 3.06 hereof,
and the Trustee, as such paying agent, shall apply such funds on the redemption
date to the redemption of the bonds so called.
(b) The Company shall, within 10 days after the occurrence of a "final
determination" under subsection (c) of Section 2.01 hereof, deliver to the
Trustee written notice of such "final determination". The Company shall, by
resolution of its Board of Directors, fix a redemption date for such redemption
and shall deliver to the Trustee, the Authority and the Authority Trustee a
certified copy of said resolution at least 40 days prior to the date so
selected for redemption. Such redemption date may be any day not more than 180
days after the occurrence of such "final determination". If the Trustee does
not receive written notice of such selection by the Company within 140 days
after the date of the occurrence of such "final determination", then the
redemption date shall be the 180th day after the occurrence of such "final
determination". On or before such redemption date, the Company shall deposit
with the Trustee, as paying agent hereunder, the total redemption price of the
bonds so called, with interest accrued thereon to the redemption date, less any
credits to which the Company may be entitled pursuant to Section 3.06 hereof,
and the Trustee, as such paying agent, shall apply such funds, on the
redemption date, to the redemption of the bonds so called. The delivery to the
Authority Trustee of a certified copy of such resolution shall constitute
notice to the Authority Trustee of the redemption referred to therein on the
terms specified therein.
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SECTION 2.03. Interest on Called Bonds to Cease. Each bond or portion
thereof of the Pollution Control Series P called for redemption under Section
2.02 hereof shall be due and payable at the office of the Trustee, as paying
agent hereunder, at the applicable redemption price and on the specified
redemption date, anything herein or in such bond to the contrary
notwithstanding. From and after the date when each bond or portion thereof of
the Pollution Control Series P shall be due and payable as aforesaid (unless
upon said date the full amount due thereon shall not be held by or provided to
the Trustee, as paying agent hereunder, and be immediately available for
payment), all further interest shall cease to accrue on such bond or on such
portion thereof, as the case may be.
SECTION 2.04. Bonds Called in Part. If only a portion of any bond of the
Pollution Control Series P shall be called for redemption pursuant to Section
2.02 hereof, the notice of redemption hereinbefore provided for shall specify
the portion of the principal amount thereof to be redeemed. Upon payment of the
portion so called for redemption, the Trustee, as paying agent hereunder, shall
give prompt written notice thereof to the Company.
SECTION 2.05. Provisions of Indenture Not Applicable. The provisions of
Article Four of the Indenture, as amended and supplemented, shall not apply to
the procedure for the exercise of any right of redemption reserved by the
Company, or to any mandatory redemption provided in this Article in respect of
the bonds of the Pollution Control Series P. There shall be no sinking fund for
the bonds of the Pollution Control Series P.
ARTICLE III.
MISCELLANEOUS.
SECTION 3.01. Authentication of Bonds of Pollution Control Series P.
None of the bonds of the Pollution Control Series P, the issue of which is
provided for by this supplemental indenture, shall be authenticated by the
Trustee except in accordance with the provisions of the Indenture, as amended
and supplemented, and this supplemental indenture, and upon compliance with the
conditions in that behalf therein contained.
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SECTION 3.02. Additional Restrictions on Authentication of Additional
Bonds Under Indenture. The Company covenants that from and after the date of
execution of this supplemental indenture, no additional bonds (as defined in
Section 1 of Article Two of the Indenture) shall be authenticated and delivered
by the Trustee under Subdivision A of Section 4 of said Article Two on account
of additions or improvements to the mortgaged property
(1) unless the net earnings of the Company for the period required
by Subdivision C of Section 6 of said Article Two shall have been at least
twice the fixed charges (in lieu of 1 3/4 times such fixed charges, as
required by said Subdivision C); and for the purpose of this condition (a)
such fixed charges shall in each case include interest on the bonds
applied for, notwithstanding the parenthetical provision contained in
clause (4) of said Subdivision C, and (b) in computing such net earnings
there shall be included in expenses of operation (under paragraph (c) of
said Subdivision
C) all charges against earnings for depreciation, renewals or
replacements, and all certificates with respect to net earnings delivered
to the Trustee in connection with any authentication of additional bonds
under said Article Two shall so state; and
(2) except to the extent of 60% (in lieu of 75% as permitted by
Subdivision A of Section 7 of said Article Two) of the cost or fair value
to the Company of the additions or improvements forming the basis for such
authentication of additional bonds.
SECTION 3.03. Restriction on Dividends. The Company will not declare or
pay any dividend on any shares of its common stock (other than dividends
payable in shares of its common stock) or make any other distribution on any
such shares, or purchase or otherwise acquire any such shares (except shares
acquired without cost to the Company) whenever such action would reduce the
earned surplus of the Company to an amount less than $10,000,000 or such lesser
amount as may remain after deducting from said $10,000,000 all amounts
appearing in the books of account of the Company on December 31, 1948, which
shall thereafter, pursuant to any order or rule of any regulatory body entered
after said date, be required to be removed, in whole or in part, from the books
of account of the Company by charges to earned surplus.
19
SECTION 3.04. Use of Facsimile Seal and Signatures. The seal of the
Company and any or all signatures of the officers of the Company upon any of
the bonds of the Pollution Control Series P may be facsimiles.
SECTION 3.05. Effective Period of Supplemental Indenture. The preceding
provisions of Articles I, II and III of this supplemental indenture shall
remain in effect only so long as any of the bonds of the Pollution Control
Series P shall remain outstanding.
SECTION 3.06. Credits with Respect to Payments. (a) The Company shall
be entitled to a credit against its obligation to pay interest on the bonds of
the Pollution Control Series P equal to interest paid on the 1994 Series A
Authority Bonds out of the accrued interest received upon the original issuance
of the 1994 Series A Authority Bonds and the earnings on the investment
thereof, as provided in the Authority Indenture, which are held by the
Authority Trustee at the time of the interest payment date.
(b) The Company shall be entitled to credits against amounts otherwise
payable in respect of the bonds of the Pollution Control Series P in an amount
corresponding to (i) the principal amount of any 1994 Series A Authority Bond
surrendered to the Authority Trustee by the Company or the Authority, or
purchased by the Authority Trustee, for cancellation and (ii) the amount of
money held by the Authority Trustee and available and designated for the
payment of principal or redemption price of and interest on the 1994 Series A
Authority Bonds, as the case may be, regardless of the source of payment to the
Authority Trustee of such moneys, and the Trustee, as paying agent hereunder,
shall give prompt written notice to the Company of any such credit with respect
to the payment of interest.
(c) The Trustee, as paying agent hereunder, shall (i) promptly notify the
Company of each deposit in the Debt Service Fund under the Authority Indenture,
(ii) provide evidence to the Company that such deposit has been credited to
such Fund and (iii) give prompt written notice to the Company of any credits
with respect to payment of principal or redemption price of and interest on the
bonds of the Pollution Control Series P.
(d) A certificate of the Company signed by the President or any Vice
President, and by the Secretary or any Assistant Secretary, and consented to
20
by the Authority Trustee, stating that the Company is entitled to a credit
under this Section 3.06 and setting forth the basis therefor in reasonable
detail, shall be conclusive evidence of such entitlement, and the Trustee shall
accept such certificate without further investigation or verification of the
matters stated therein.
SECTION 3.07. Time for Making of Payment. All payments of principal or
redemption price of and interest on the bonds of the Pollution Control Series
P shall be made to the Authority Trustee in such funds as shall constitute
immediately available funds when payment is due. In any case where the date of
payment of the principal or redemption price of or interest on the bonds of the
Pollution Control Series P or the date fixed for redemption of any such bonds
shall be in the city of payment a Saturday, Sunday or a legal holiday or a day
on which banking institutions are authorized by law to close, then such payment
need not be made on such date but may be made on the next succeeding business
day with the same force and effect as if made on the date of maturity or the
date fixed for redemption, and no interest on such payment shall accrue for the
period after such date.
SECTION 3.08. Effect of Approval of Board of Regulatory Commissioners of
the State of New Jersey. The approval of the Board of Regulatory Commissioners
of the State of New Jersey of the execution and delivery of these presents and
of the issue of any bonds of the Pollution Control Series P shall not be
construed as approval of said Board of any other act, matter or thing which
requires approval of said Board under the laws of the State of New Jersey.
SECTION 3.09. Execution in Counterparts. For the purpose of facilitating
the recording hereof, this supplemental indenture has been executed in several
counterparts, each of which shall be and shall be taken to be an original, and
all collectively but one instrument.
21
IN WITNESS WHEREOF, Public Service Electric and Gas Company, party hereto
of the first part, after due corporate and other proceedings, has caused this
supplemental indenture to be signed and acknowledged or proved by its
President, one of its Vice Presidents and its corporate seal hereunto to be
affixed and to be attested by the signature of its Secretary or an Assistant
Secretary; and First Fidelity Bank, National Association, as Trustee, party
hereto of the second part, has caused this supplemental indenture to be signed
and acknowledged or proved by its President, one of its Vice Presidents or one
of its Assistant Vice Presidents and its corporate seal to be hereunto affixed
and to be attested by the signature of its Secretary, Cashier or an Assistant
Cashier or a Corporate Trust Officer, Executed and delivered this 19th day of
May, 1994.
PUBLIC SERVICE ELECTRIC AND GAS
COMPANY
By
P. A. RADO
(P. A. RADO)
Vice President
Attest:
E.J. BIGGIN, JR.
(E.J. BIGGIN, JR.)
Assistant Secretary
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
By
F. GALLAGHER
(F. Gallagher)
Assistant Vice President
Attest:
D. DOWDELL
(D. Dowdell)
(Corporate Seal)
22
STATE OF NEW JERSEY)
) ss.:
COUNTY OF ESSEX )
BE IT REMEMBERED, that on this 19th day of May, 1994, before me, the
subscriber, a Notary Public of the State of New Jersey, personally appeared P.
A. Rado who, I am satisfied, is a Vice President of PUBLIC SERVICE ELECTRIC AND
GAS COMPANY, one of the corporations named in and which executed the foregoing
instrument, and is the person who signed the said instrument as such officer
for and on behalf of such corporation, and I having first made known to her the
contents thereof, she did acknowledge that she signed the said instrument as
such officer, that the said instrument was made by such corporation and sealed
with its corporate seal, that the said instrument is the voluntary act and deed
of such corporation, made by virtue of authority from its Board of Directors,
and that said corporation, the mortgagor, has received a true copy of said
instrument.
JEAN M. SIEZ
JEAN M. SIEZ
A NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Nov. 28, 1995
(NOTARY SEAL)
STATE OF NEW JERSEY)
) ss.:
COUNTY OF ESSEX )
BE IT REMEMBERED, that on this 19th day of May, 1994, before me, the
subscriber, a Notary Public of the State of New Jersey, personally appeared F.
Gallagher who, I am satisfied, is an Assistant Vice President of FIRST FIDELITY
BANK, NATIONAL ASSOCIATION, one of the corporations named in and which executed
the foregoing instrument, and is the person who signed the said instrument as
such officer, for and on behalf of such corporation, and I having first made
known to him the contents thereof, he did acknowledge that he signed the said
instrument as such officer, that the said instrument was made by such
corporation and sealed with its corporate seal; and that the said instrument
is the voluntary act and deed of such corporation, made by virtue of authority
from its Board of Directors.
JACQUELYN E. ONUFER
JACQUELYN E. ONUFER
A NOTARY PUBLIC OF NEW JERSEY
My Commission Expires July 14, 1997
(NOTARY SEAL)
23
CERTIFICATE OF RESIDENCE
First Fidelity Bank, National Association, Mortgagee and Trustee within
named, hereby certifies that its precise residence is 765 Broad Street, Newark,
New Jersey 07101.
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
By F. GALLAGHER
(F. Gallagher)
Assistant Vice President