SUPPLEMENTAL MORTGAGE
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Supplemental Indenture
DATED OCTOBER 1, 1995 (NO. 1)
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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 U
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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
(DONALD S. LEIBOWITZ, ESQ.)
TABLE OF CONTENTS
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PAGE
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RECITALS..................................... 1
FORM OF BOND................................. 4
FORM OF CERTIFICATE OF AUTHENTICATION........ 9
GRANTING CLAUSES............................. 9
ARTICLE I.
BONDS OF THE POLLUTION CONTROL SERIES U.
DESCRIPTION OF POLLUTION CONTROL SERIES U.... 11
ARTICLE II.
REDEMPTION OF BONDS--POLLUTION CONTROL SERIES U.
SECTION 2.01. Redemption--Redemption Prices.. 12
SECTION 2.02. Notice of Redemption........... 15
SECTION 2.03. Interest on Called Bonds to Cease. 17
SECTION 2.04. Bonds Called in Part........... 17
SECTION 2.05. Provisions of Indenture
not Applicable................. 17
ARTICLE III.
CREDITS WITH RESPECT TO THE BONDS
OF THE POLLUTION CONTROL SERIES U.
SECTION 3.01. Credits...................... 18
SECTION 3.02. Certificate of the Company... 19
ARTICLE IV.
MISCELLANEOUS.
SECTION 4.01. Authentication of Bonds of Pollution
Control Series U............. 19
SECTION 4.02. Additional Restrictions on
Authentication of Additional Bonds
Under Indenture.............. 19
SECTION 4.03. Restriction on Dividends..... 20
SECTION 4.04. Use of Facsimile Seal and Signatures 21
SECTION 4.05. Effective Period of Supplemental
Indenture.................... 21
SECTION 4.06. Time for Making of Payment... 21
SECTION 4.07. Effect of Approval of Board of Public
Utilities of the State of
New Jersey.................. 21
SECTION 4.08. Execution in Counterparts.... 21
Acknowledgments.............................. 22
Certificate of Residence..................... 24
SUPPLEMENTAL INDENTURE, dated the 1st day of October, 1995,
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
PAGE
COUNTY OFFICE BOOK NUMBER NUMBER
- ------- ------- ----------- --------
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.
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
- ------- ------- ----------- --------
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 October
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 October 1, 1994 (No. 2), the Company
has acquired property 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") has previously issued and sold its Pollution Control
Revenue Bonds, 1979 Series A (Public Service Electric and Gas
Company Project) (the "1979 Authority Bonds") to finance the
acquisition and construction of certain pollution control
facilities at the Company's Bergen Generating Station, Burlington
Generating Station, Hudson Generating Station, Kearny Generating
Station, Linden Generating Station, Mercer Generating Station,
Sewaren Generating Station, Central Gas Plant, Harrison Gas Plant
and West End Gas Plant, all of which are located within the State
of New Jersey (such generating stations and gas plants being
referred to individually as a "Plant" and collectively as "Plants"
and the pollution control facilities being sometimes referred to
herein seperately as a "Project" and collectively as "Projects");
and
WHEREAS, the Authority is making provision for the issuance
and sale of its Pollution Control Revenue Refunding Bonds, 1995
Series A (Public Service Electric and Gas Company Project) (the
"1995 Authority Bonds") to provide funds for making a loan to the
Company to provide for refinancing of a portion of the costs of
the Projects, including the refunding and redemption of the 1979
Authority Bonds; and
WHEREAS, the 1995 Authority Bonds are to be issued under a
Trust Indenture dated as of September 1, 1995, (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 September 1, 1995, (the
"Agreement"), with the Authority providing, among other things,
for the loan by the Authority to the Company of funds to finance a
portion of the costs of the Projects, including the refunding and
redemption of the 1979 Authority Bonds, and for 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 $42,620,000 aggregate principal amount of bonds secured
by the Indenture of a series to be designated as "First and
Refunding Mortgage Bonds, Pollution Control Series U" (hereinafter
sometimes called "Pollution Control Series U"); and
WHEREAS, the text of the bonds of the Pollution Control
Series U and of the certificate of authentication to be borne by
the bonds of the Pollution Control Series U shall be substantially
of the following tenor:
[FORM OF BOND]
This Bond is not transferable except as provided in the Trust
Indenture dated as of September 1, 1995 between the New Jersey
Economic Development Authority and First Fidelity Bank, National
Association, as Trustee (the "Authority Indenture"). Capitalized
terms used herein, not otherwise expressly defined herein, shall
have the meanings ascribed to them in the Authority Indenture.
REGISTERED REGISTERED
NUMBER AMOUNT
R- $42,620,000
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
FIRST AND REFUNDING MORTGAGE BOND,
POLLUTION CONTROL SERIES U
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 Forty-Two Million Six
Hundred Twenty Thousand Dollars, on September 1, 2012, and to pay
interest thereon from the date hereof, at the rate of 15.0% per
annum, and until payment of said principal sum, provided, however,
that the Company shall receive certain credits against such
obligations to the extent that interest payable by the Authority
from time to time for bonds issued pursuant to the Authority
Indenture (the "1995 Authority Bonds") is less than interest
calculated pursuant to the foregoing rate. Such interest to be
payable at such times and in such manner as interest is payable on
the 1995 Authority Bonds.
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 October 1, 1995 (No. 1). This Bond is one of the
Bonds of the Pollution Control Series U, which series is limited
to the aggregate principal amount of $42,620,000 and is issued
pursuant to said supplemental indenture dated October 1, 1995 (No.
1). 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
U, in which this Bond is included, are designated "First and
Refunding Mortgage Bonds, Pollution Control Series U".
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 October 1, 1995 (No.
1).
This Bond is transferable, but only as provided in the
Authority Indenture 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 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
[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 October 1, 1995 (No. 1), as secured
thereby.
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION, TRUSTEE,
BY
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Authorized Signatory
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 U 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, 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 October 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 heretofore 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;
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 U.
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 U"; shall be limited to the aggregate principal amount of
$42,620,000; 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
Projects 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
3.01 hereof. The date of each bond of the Pollution Control Series
U shall be the 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 interest payment date, in which case the date shall be
October 1, 1995.
Bonds of the Pollution Control Series U shall be issued as
fully registered bonds in any denomination authorized by the
Company. Interest on bonds of the Pollution Control Series U shall
be payable at such time and in such manner as interest is payable
on the 1995 Authority Bonds, subject to certain credits against
principal and interest as set forth in Section 3.01 hereof 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 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 U 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 U, 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 U.
SECTION 2.01. Redemption--Redemption Prices. Bonds of the
Pollution Control Series U shall be subject to redemption prior to
maturity, 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
(i) whenever the Interest Rate Mode for the 1995 Authority
Bonds is the Daily Rate or the Weekly Rate, in whole or in part,
at a redemption price of 100% of the principal amount thereof on
any Interest Payment Date;
(ii) whenever the Interest Rate Mode for the 1995 Authority
Bonds is the Commercial Paper Rate, in whole or in part, at a
redemption price of 100% of the principal amount thereof on the
Interest Payment Date for each Commercial Paper Rate Period for
an Authority Bond or Bonds, such redemption to be in the same
principal amount of such Authority Bond or Bonds;
(iii) whenever the Interest Rate Mode for the 1995 Authority
Bonds is the Auction Rate, in whole or in part, at a redemption
price of 100% of the principal amount thereof on the final
Interest Payment Date for each Auction Period;
(iv) whenever the Interest Rate Mode for the 1995 Authority
Bonds is the Term Rate, in whole or in part, on the final Interest
Payment Date for the then current Term Rate Period and, prior to
the end of the then current Term Rate Period, at any time during
the redemption periods and at the redemption prices set forth
below, plus interest accrued, if any, to the redemption date:
ORIGINAL LENGTH OF CURRENT COMMENCEMENT OF REDEMPTION PRICE AS
TERM RATE PERIOD (YEARS) REDEMPTION PERIOD PERCENTAGE OF PRINCIPAL
- -------------------------- ----------------- -----------------------
More than 15 years Tenth anniversary of 102% declining by 1% on each
commencement of succeeding anniversary of the
Term Rate Period first day of the redemption
period until reaching 100%
and thereafter 100%
More than 10 but not more Seventh anniversary 102% declining by 1% on each
than 15 years of commencement of succeeding anniversary of the
Term Rate Period first day of the redemption
period until reaching 100%
and thereafter 100%
More than 5 but not more Fifth anniversary of 101% declining by 1% on each
than 10 years commencement of succeeding anniversary of the
Term Rate Period first day of the redemption
period until reaching 100%
and thereafter 100%
More than 2 but not more Second anniversary of 100% on and after such second
than 5 years commencement of anniversary of the first day
Term Rate Period of the redemption period
2 years or less Non-callable Non-callable
If, at the time of the Company's notice of a change in the
Term Rate Period pursuant to Section 2.02(d) of the Authority
Indenture, or its notice of Conversion of the Interest Rate
Mode for the 1995 Authority Bonds to the Term Rate pursuant
to Section 2.02(e) of the Authority Indenture, or, when the
Interest Rate Mode for the 1995 Authority Bonds is the Term
Rate, at least 35 days prior to the Purchase Date for the
1995 Authority Bonds pursuant to Section 3.01(b)(i) of the
Authority Indenture, the Company provides a certification of
the Remarketing Agent to the Authority Trustee and the
Authority that the foregoing schedule is not consistent with
prevailing market conditions and an opinion of nationally
recognized bond counsel that a change in the redemption
provisions of the 1995 Authority Bonds will not adversely
affect the exclusion from gross income of interest on the
1995 Authority Bonds for Federal income tax purposes, the
foregoing redemption periods and redemption prices may be
revised effective as of the date of such change in the Term
Rate Period, the Conversion Date, or that Purchase Date, as
determined by the Remarketing Agent in its judgment, taking
into account the then Prevailing Market Conditions, as
stipulated in such certification, which shall be appended by
the Trustee to its counterpart of this supplemental
indenture. Any such revision of redemption periods or
redemption prices shall not be considered an amendment of or
supplement to this supplemental indenture and shall not
require the consent of any other person or entity.
(b) 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 remaining 1995
Authority Bonds) at any time 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 1995 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 thedefense
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
1995 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, as amended, and the
applicable regulations thereunder.
(c) in whole at 100% of the principal amount thereof
whenever the Company receives from the Authority Trustee
a copy of a written demand sent to the Trustee stating
that the principal of all outstanding 1995 Authority
Bonds has been declared to be immediately due and
payable because of an Event of Default under the
Authority Indenture. In such case, redemption of the
Bonds of the Pollution Control Series U shall be any
date selected by the Company, not more than 180 days
after receipt by the Company of such written demand for
redemption.
(d) to the extent that any of the 1995 Authority Bonds shall
have become Provider Bonds, (i) on the Provider Bond
Redemption Date in an amount equal to the aggregate
principal amount of Provider Bonds outstanding at the
expiration of the Liquidity Facility at 100% of the
principal amount thereof and (ii) on each of the first
four anniversaries of the expiration of the Liquidity
Facility at the rate of 20% per year of the aggregate
principal amount of Provider Bonds outstanding at the
expiration of the Liquidity Facility at 100% of the
principal amount thereof.
SECTION 2.02. Notice of Redemption. (a) The election of the
Company under subsection (a) of Section 2.01 hereof to redeem any
of the bonds of the Pollution Control Series U shall be evidenced
by a resolution of the Board of Directors of the Company calling
for redemption on a stated date of all or a stated principal
amount thereof. To exercise its option to redeem the bonds of the
Pollution Control Series U under subsection (a) 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 a stated principal amount of the bonds of the
Pollution Control Series U for redemption on a date not less than
20 days (35 days if the Interest Rate Mode is the Term Rate) nor
more than 65 days from the date said resolution is delivered. 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.
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 3.01 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 (b) 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 3.01 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.
(c) The Company shall, within 10 days after the receipt of a
written demand under subsection (c) of Section 2.01 hereof, 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
receipt of such written demand. If the Trustee does not receive
written notice of such selection by the Company within 140 days
after the date of the receipt of such written demand, then the
redemption date shall be the 180th day after the receipt of such
written demand. 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 3.01 hereof, and
the Trustee, as such paying agent, shall apply such funds, on the
redemption date, to the redemption of the bonds so called.
SECTION 2.03. Interest on Called Bonds to Cease. Each bond
or portion thereof of the Pollution Control Series U 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 U 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 U 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 U. There shall be no sinking
fund for the bonds of the Pollution Control Series U.
ARTICLE III.
CREDITS WITH RESPECT TO THE BONDS OF THE
POLLUTION CONTROL SERIES U.
SECTION 3.01. Credits. (a) In addition to any other credit,
payment or satisfaction to which the Company is entitled with
respect to the Bonds of the Pollution Control Series U, the
Company shall be entitled credits against amounts otherwise
payable in respect of the Bonds of the Pollution Control Series U
in an amount corresponding to the amount by which interest due on
the Bonds of the Pollution Control Series U exceeds the interest
due on the 1995 Authority Bonds.
(b) The Company shall be entitled to credits against amounts
otherwise payable in respect of the bonds of the Pollution Control
Series U in an amount corresponding to (i) the principal amount of
any 1995 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 or applied
toward the payment of principal or redemption price of and
interest on the 1995 Authority Bonds, as the case may be,
regardless of the source of payment to the Authority Trustee of
such moneys; provided, however, that the Company shall not be
entitled to any such credit with respect to amounts paid to the
Authority Trustee pursuant to the Bond Insurance Policy. 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 Bond 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 U.
SECTION 3.02. Certificate of the Company. A certificate of
the Company signed by the President, any Vice President or any
Assistant Treasurer, and attested to by the Secretary or any
Assistant Secretary, and consented to by the Authority Trustee,
stating that the Company is entitled to a credit under Section
3.01 hereof and setting forth the basis therefor in reasonable
detail, shall be conclusive evidence of such entitlement, and the
Trustee shall accept such certificate as such evidence without
further investigation or verification of the matters stated
therein.
ARTICLE IV.
MISCELLANEOUS.
SECTION 4.01. Authentication of Bonds of Pollution Control
Series U. None of the bonds of the Pollution Control Series U,
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.
SECTION 4.02. 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 4.03. 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.
SECTION 4.04. 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
U may be facsimiles.
SECTION 4.05. 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 U shall remain
outstanding.
SECTION 4.06. Time for Making of Payment. All payments of
principal or redemption price of and interest on the bonds of the
Pollution Control Series U 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 U 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 4.07. Effect of Approval of Board of Public
Utilities of the State of New Jersey. The approval of the Board
of Public Utilities 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 U 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 4.08. 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.
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 or 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 one of its Assistant Vice
Presidents, its Cashier, one of its Assistant Cashiers, or one of
its Corporate Trust Officers. Executed and delivered this 2nd day
of October, 1995.
PUBLIC SERVICE ELECTRIC AND GAS
COMPANY
By /s/
(F. J. Riepl)
Vice President
Attest:
/s/
(E. J. Biggins, Jr.)
Assistant Secretary
FIRST FIDELITY BANK, NATIONAL
ASSOCIATION
By
/s/
(F. Gallagher)
Vice President
Attest:
/s/
(J.J. Waters)
Assistant Vice President
STATE OF NEW JERSEY
ss.:
COUNTY OF ESSEX
BE IT REMEMBERED, that on this 2nd day of October, 1995,
before me, the subscriber, a Notary Public of the State of New
Jersey, personally appeared F. J. Riepl 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 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, 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.
Notarized by Irene Roxanne Prignamo
Notary Public of New Jersey
STATE OF NEW JERSEY
ss.:
COUNTY OF ESSEX
BE IT REMEMBERED, that on this 2nd day of October, 1995,
before me, the subscriber, a Notary Public of the State of New
Jersey, personally appeared F. Gallagher who, I am satisfied, is a
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.
Notarized by Jean M. Seiz
Notary Public of New Jersey
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 /s/
(F. Gallagher)
Assistant Vice President