PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
and
FIRST UNION NATIONAL BANK, as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 1, 1998
to
INDENTURE
Dated as of January 1, 1998
Floating Rate Deferrable Interest Subordinated Debentures, Series B
TABLE OF CONTENTS
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Page
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ARTICLE 1.
DEFINITIONS...............................................2
SECTION 1.01 Definitions.................................2
ARTICLE 2.
THE SERIES B DEBENTURES...................................2
SECTION 2.01 Terms and Form of the Series B Debentures....2
ARTICLE 3.
REDEMPTION................................................5
SECTION 3.01 Redemption; Notice to Trustee...............5
ARTICLE 4.
COVENANT..................................................5
SECTION 4.01 Payment of Expenses of Trust II.............5
ARTICLE 5.
MISCELLANEOUS.............................................5
SECTION 5.01 Confirmation of Indenture...................5
SECTION 5.02 Notices.....................................5
SECTION 5.03 Severability Clause.........................6
SECTION 5.04 No Recourse Against Others..................6
SECTION 5.05 Successors..................................7
SECTION 5.06 Multiple Original Copies of this Indenture..7
SECTION 5.07 Table of Contents; Headings, Etc............7
FIRST SUPPLEMENTAL INDENTURE, dated as of June 1, 1998, by and between
Public Service Enterprise Group Incorporated, a corporation duly organized and
existing under the laws of the State of New Jersey (the "Company") and First
Union National Bank, a national banking association organized and existing under
the laws of the United States of America, as trustee (the "Trustee") under the
Indenture dated as of January 1, 1998 between the Company and the Trustee.
WHEREAS, the Company executed and delivered the Indenture dated as of
January 1, 1998 to the Trustee to provide for the issuance of its deferrable
interest subordinated debentures (the "Debentures") in series from time to time
as might be determined by the Company and pursuant thereto, the Company has
issued its 7.44% Deferrable Interest Subordinated Debentures, Series A.
WHEREAS, pursuant to an Amended and Restated Trust Agreement dated as of
June 26, 1998 (the "Trust II Agreement"), among the Company, as depositor, First
Union National Bank, as Property Trustee (the "Property Trustee II"), the
Delaware Trustee named therein and the Administrative Trustees named therein,
there has been declared and established Enterprise Capital Trust II, a Delaware
business trust ("Trust II").
WHEREAS, Trust II intends to issue its Trust Securities (as defined in the
Trust II Agreement), including its Floating Rate Capital Securities, Series B,
representing undivided beneficial interests in the assets of Trust II and having
a liquidation amount of $1,000 per security (the "Series B Capital Securities").
WHEREAS, the Company has authorized the issuance of a series of additional
debentures pursuant to Section 2.04 of the Indenture to be designated as the
Company's Floating Rate Deferrable Interest Subordinated Debentures, Series B
(the "Series B Debentures") to be purchased by Trust II with the proceeds of the
Trust Securities, and to provide therefor, the Company has duly authorized the
execution and delivery of this First Supplemental Indenture.
WHEREAS, all things necessary to make the Series B Debentures when duly
issued and executed by the Company and authenticated and delivered hereunder,
the valid obligations of the Company, and to make this First Supplemental
Indenture a valid and binding agreement of the Company, in accordance with its
terms, have been done.
NOW THEREFORE:
Each of the Company and the Trustee, intending to be legally bound hereby,
agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the holders of the Debentures, including the Series B
Debentures:
ARTICLE 1.
DEFINITIONS
SECTION 1.01 Definitions
The following terms used in this First Supplemental Indenture shall have
the following meanings:
"Debentureholder" or "Holder" means a Person in whose name a Series B
Debenture is registered on the Registrar's books.
"Series B Debentures" means any of the Company's Floating Rate Deferrable
Interest Subordinated Debentures, Series B issued under this First Supplemental
Indenture.
"Series B Guarantee Agreement" means that certain Guarantee Agreement
issued by the Company with respect to the Series B Capital Securities, in which
the Company irrevocably and unconditionally agrees to pay the Guarantee Payments
(as defined in the Guarantee Agreement) to the holders of the Series B Capital
Securities.
"Series B Capital Securities" means the undivided beneficial interests in
the assets of Trust II, having a liquidation amount of $1,000 and having rights
provided therefor in the Trust II Agreement.
"Trust II" means Enterprise Capital Trust II, a Delaware business trust
created by the Trust II Agreement.
"Trust II Agreement" means the Amended and Restated Trust Agreement dated
as of June 26, 1998, among the Company, as Depositor, Fidelity Union National
Bank, as Property Trustee, the Delaware Trustee named therein and the
Administrative Trustees named therein, as the same may be amended and modified
from time to time.
Each of the other terms used in this First Supplemental Indenture that is
defined in the Indenture and not defined herein shall have the meaning assigned
to it in the Indenture.
ARTICLE 2.
THE SERIES B DEBENTURES
SECTION 2.01 Terms and Form of the Series B Debentures
(a) The Series B Debentures shall be designated "Public Service Enterprise
Group Incorporated Floating Rate Deferrable Interest Subordinated Debentures,
Series B." The Series B Debentures and the Trustee's Certificate of
Authentication shall be substantially in the form of Exhibit A attached hereto.
The Series B Debentures shall initially be issued as global Debentures in
accordance with the provisions of Section 2.12 of the Indenture with The
Depository Trust Company as Depositary. The terms and provisions contained in
the Series B Debentures shall constitute, and are hereby expressly made, a part
of this First Supplemental Indenture. The Company and the Trustee, by their
execution and delivery of this First Supplemental Indenture, expressly agree to
such terms and provisions and to be bound thereby.
(b) The aggregate principal amount of Series B Debentures outstanding at
any time may not exceed $154,640,000 except as provided in Section 2.09 of the
Indenture. The Series B Debentures shall be authenticated and delivered from
time to time upon delivery to the Trustee of the items specified in Section
2.04(d) of the Indenture.
(c) The Stated Maturity Date of the Series B Debentures is June 30, 2028.
(d) The interest rate of the Series B Debentures will be a floating rate
per annum determined quarterly by reference to 3-Month LIBOR, determined as
described herein, plus a margin of 1.22%.
"3-Month LIBOR" means the London interbank offered rate for three-month
U.S. dollar deposits and with respect to any Interest Period (as defined below)
will be calculated by First Union National Bank or any successor appointed by
the Company as Calculation Agent, as permitted by this First Supplemental
Indenture (the "Calculation Agent") as follows:
i. On the second Market Day (as defined below) preceding the commencement
of such Interest Period (each, a "Determination Date"), 3-Month LIBOR will be
determined on the basis of the offered rate for deposits of not less than U.S.
$1,000,000 for a period of three months (the "Index Maturity"), commencing on
such Market Day, which appears on the display designated as Page 3750 on the Dow
Jones Markets Limited (or such other page as may replace Page 3750 on that
service (or any successor service) for the purpose of displaying London
interbank offered rates of major banks) ("Telerate Page 3750") as of 11:00 a.m.,
London time on such Market Day. If no such offered rate appears, 3-Month LIBOR
with respect to such Interest Period will be determined as described in (ii)
below.
The term "Interest Period" means each period beginning on, and including,
the date of original issuance and ending on, but excluding, the first Interest
Payment Date (as defined below) , and each successive period, so beginning on an
Interest Payment Date and so ending on, but excluding the next successive
Interest Payment Date.
ii. With respect to a Determination Date on which no such offered rate
appears on Telerate Page 3750 as described in (i) above, 3-Month LIBOR shall be
the arithmetic mean, expressed as a percentage, of the offered rates for
deposits in U.S. dollars for the Index Maturity which appears on the display
designated as "LIBO" on the Reuter Monitor Money Market Rates Service (or such
other page as may replace the LIBO page on that service (or any successor
service) for the purpose of displaying London interbank offered rates of major
banks) ("Reuters Screen LIBO Page") as of 11:00 a.m., London time, on such
Market Day. If, in turn, such rate is not displayed on the Reuters Screen LIBO
Page at such time, the Calculation Agent will obtain from each of four reference
banks in London selected by the Calculation Agent (the "Reference Banks") such
bank's offered quotation (expressed as a percentage per annum) as of
approximately 11:00 a.m., London time, on such Market Day for deposits in U.S.
dollars for the Index Maturity to prime banks in the London interbank market. If
two or more such quotations are provided as requested, then 3-Month LIBOR for
such Market Day shall be the arithmetic mean of such quotations. If, in turn,
fewer than two such quotations are provided as requested, then 3-Month LIBOR for
such Market Day will be obtained from the preceding Market Day for which the
Reuters Screen LIBO Page displayed an offered rate for deposits in U.S. dollars
for the Index Maturity.
iii. If on any Determination Date, the Calculation Agent is required but
unable to determine 3-Month LIBOR in the manner provided in paragraphs (i) and
(ii) above, 3-Month LIBOR for such Interest Period shall be 3-Month LIBOR as
determined on the immediately preceding Determination Date.
The term "Market Day" means any day on which commercial banks and foreign
exchange markets are open for business (including dealings in foreign exchange
and foreign currency deposits) in The City of New York and The City of London.
The interest rate for any Interest Period will at no time be higher than
the maximum rate then permitted by applicable law.
All percentages resulting from any calculations referred to herein will be
rounded, if necessary, to the nearest multiple of 1/100 of 1% and all U.S.
dollar amounts used in or resulting from such calculations will be rounded to
the nearest cent (with one-half cent or more being rounded upwards).
The Calculation Agent shall, as soon as practicable after 11:00 a.m.,
London time, on each Determination Date, determine the interest rate and
calculate the amount of interest payable in respect of the Interest Period
related to such Determination Date (the "Interest Amount"). The Interest Amount
shall be calculated by applying the interest rate to the principal amount of
each Series B Debenture outstanding at the commencement of the Interest Period,
multiplying such amount by the actual number of days in the applicable Interest
Period divided by 360 and rounding the resultant figure to the nearest cent
(with one-half cent or more being rounded upwards). The determination of the
interest rate and the Interest Amount by the Calculation Agent will (in the
absence of willful default, bad faith or manifest error) be final, conclusive
and binding on all concerned. Neither the Calculation Agent nor the Company (or
any of their respective officers, directors, agents, beneficiaries, employees or
affiliates) shall have any liability to any person for (i) the selection of any
Reference Bank or (ii) any inability to retain major banks in the London
interbank market, in the case of the Calculation Agent, which is caused by
circumstances beyond its reasonable control.
All certificates, communications, opinions, determinations, calculations,
quotations and decisions given, expressed, made or obtained for the purposes of
the provisions hereof relating to the payment and calculation of interest on the
Series B Debentures, whether by the Reference Banks (or any of them) or the
Calculation Agent, will (in the absence of willful default, bad faith or
manifest error) be binding on Trust II, the Company, the Trustee, the
Calculation Agent and all of the holders of the Series B Debentures and no
liability will (in the absence of willful default, bad faith or manifest error)
attach to the Calculation Agent in connection with the exercise or non-exercise
by it of its powers, duties and discretion.
(e) The "Interest Payment Dates" for the Series B Debentures are March 31,
June 30, September 30 and December 31 of each year, commencing September 30,
1998. In the event that any date on which interest is payable on the Series B
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay), except that if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date. The Regular Record Date for each Interest
Payment Date for the Series B Debentures shall be the 15th day (whether or not a
Business Day) of the last month of each quarter, provided that if Trust II is
the sole Holder of the Series B Debentures or the Series B Debentures are issued
in book-entry-only form, the Regular Record Date shall be the close of business
on the Business Day next preceding such Interest Payment Date.
Each Series B Debenture shall bear interest from its Issue Date or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for with respect to such Series B Debenture; except that, so long as
there is no existing Defaulted Interest or Extension Period on the Series B
Debentures, any Series B Debenture authenticated by the Trustee between the
Regular Record Date for any Interest Payment Date and such Interest Payment Date
shall bear interest from such Interest Payment Date.
Overdue principal of, and interest on, any Series B Debenture and interest
which has been deferred pursuant to Section 4.01(b) of the Indenture shall bear
interest (to the extent that the payment of such interest shall be legally
enforceable) at a rate per annum equal to the interest rate per annum payable on
such Series B Debenture.
The Calculation Agent will cause the interest rate, the Interest Amount in
respect of each Series B Debenture and the interest payment date for each
Interest Period to be given to the Trustee, the Property Trustee and the Company
as soon as practicable after the determination thereof but in no event later
than the second Business Day of the applicable Interest Period.
(f) The Series B Debentures shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
(g) The maximum Extension Period for the Series B Debentures shall be 20
consecutive quarters.
(h) First Union National Bank shall initially be the Paying Agent for the
Series B Debentures.
(i) First Union National Bank shall initially be the Calculation Agent for
the Series B Debenture. In the event of the resignation or removal of First
Union National Bank as the Calculation Agent, the Company will promptly appoint
a successor Calculation Agent and such successor Calculation Agent shall,
without any further act, deed or conveyance become vested with all of the
authority, rights, duties and obligations of the Calculation Agent with the like
effect as if originally appointed as Calculation Agent.
ARTICLE 3.
REDEMPTION
SECTION 3.01 Redemption; Notice to Trustee
(a) The Series B Debentures are subject to redemption prior to maturity as
provided therein.
(b) Any redemption of the Series B Debentures shall be made in the manner,
upon the terms and with the effect, all as provided in Sections 3.01(c), 3.02,
3.03, 3.04, 3.05 and 3.06 of the Indenture.
ARTICLE 4.
COVENANT
SECTION 4.01. Payment of Expenses of Trust II.
The Company covenants for the benefit of the Holders of the Series B
Debentures to pay all of the costs and expenses of Trust II in accordance with
Section 2.03(b) of the Trust II Agreement and to pay the taxes of Trust II in
accordance with Section 2.03(c) of the Trust II Agreement in order to permit
Trust II to make distributions on and redemptions of the Series B Capital
Securities in accordance with Article IV of the Trust II Agreement.
ARTICLE 5.
MISCELLANEOUS
SECTION 5.01 Confirmation of Indenture
As amended and supplemented by this First Supplemental Indenture, the
Indenture is in all respects ratified and confirmed and the Indenture and this
First Supplemental Indenture shall be read, taken and construed as one and the
same instrument.
SECTION 5.02 Notices
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing and delivered, telecopied or mailed by
first-class mail, postage prepaid, addressed as follows:
if to the Company:
Public Service Enterprise Group Incorporated
80 Park Plaza, T6B
P.O. Box 570
Newark, New Jersey 07101
Facsimile No. (973) 242-1651
Attention: Treasurer
if to the Trustee:
First Union National Bank
765 Broad Street
Newark, New Jersey 07101
Facsimile No. (973) 430-2117
Attention: Corporate Trust Department
The Company or the Trustee, by giving notice to the other, may designate
additional or different addresses for subsequent notices of communications. The
Company shall notify the holder, if any, of Senior Indebtedness of any such
additional or different addresses of which the Company receives notice from the
Trustee.
Any notice or communication given to a Debentureholder other than Trust II
shall be mailed to the Debentureholder at the Debentureholder's address as it
appears on the Register of the Registrar and shall be sufficiently given if
mailed within the time prescribed.
Failure to mail a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressees.
If the Company mails a notice or communication to the Debentureholders, it
shall mail a copy to the Trustee and each Registrar, Paying Agent or
co-Registrar.
SECTION 5.03 Severability Clause
If any provision in this Indenture or in the Series B Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 5.04 No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligations of the Company under the Series B
Debentures or this First Supplemental Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Series B Debenture, each Debentureholder shall waive and release all such
liability. The waiver and release shall be a part of the consideration for the
issue of the Series B Debentures.
SECTION 5.05 Successors.
All agreements of the Company in this First Supplemental Indenture and the
Series B Debentures shall bind its successors and assigns. All agreements of the
Trustee in this First Supplemental Indenture shall bind its successors and
assigns.
SECTION 5.06 Multiple Original Copies of this Indenture
The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. Any signed copy shall be sufficient proof of this
First Supplemental Indenture.
SECTION 5.07 Table of Contents; Headings, Etc
The Table of Contents, Cross-Reference Table and headings of the Articles
and Sections of this First Supplemental Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this First Supplemental Indenture on behalf of the respective parties hereto as
of the date first above written.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
By: MORTON A. PLAWNER
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Name: Morton A. Plawner
Title: Treasurer
FIRST UNION NATIONAL BANK, as Trustee
By: FRANK GALLAGHER
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Name: Frank Gallagher
Title: Vice President
Exhibit A
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
Floating Rate Deferrable Interest Subordinated Debenture, Series B
No. R-1
Public Service Enterprise Group Incorporated, a New Jersey corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
Enterprise Capital Trust II or registered assigns, the principal sum of One
Hundred Fifty-Four Million Six Hundred Forty Thousand Dollars ($154,640,000) on
June 30, 2028, and to pay interest on said principal sum from June 26, 1998 or
from the most recent Interest Payment Date (as defined below) to which interest
has been paid or duly provided for, quarterly in arrears and reset on March 31,
June 30, September 30 and December 31 commencing September 30, 1998 (each, an
"Interest Payment Date") at floating rate per annum determined quarterly by
reference to 3-Month LIBOR, determined as provided in the Indenture, plus a
margin of 1.22% until the principal hereof shall have become due and payable,
and on any overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum. The amount of interest payable on any Interest Payment Date
shall be calculated by applying the interest rate to the principal amount
outstanding at the commencement of the Interest Period, multiplying such amount
by the actual number of days in the applicable Interest Period divided by 360
and rounding the resultant figure to the nearest cent (with one-half cent or
more being rounded upwards). In the event that any Interest Payment Date is not
a Business Day, then interest will be payable on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date. The
interest installment so payable, and punctually paid or duly provided for as
provided in the Indenture, shall be paid to the Person in whose name this
Debenture is registered at the close of business on the Regular Record Date for
such interest installment, which shall be the 15th day (whether or not a
Business Day) of the last month of each quarter, provided that if all of the
Series B Debentures (as defined below) are then held by Enterprise Capital Trust
II (the "Trust") or the Series B Debentures are held in book-entry-only form,
the Regular Record Date shall be the close of business on the Business Day next
preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
Holders on such Regular Record Date, and may be paid to the Person in whose name
this Debenture is registered at the close of business on a Special Record Date
to be fixed by the Trustee (as defined below) for the payment of such defaulted
interest, notice whereof shall be given to the Holders of the Series B
Debentures not less than 7 days prior to such Special Record Date, as more fully
provided in the Indenture.
Payment of the principal of and interest on this Debenture will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payments of interest on
an Interest Payment Date will be made by check mailed to the Holder hereof at
the address shown in the Register or, at the option of the Holder hereof, to
such other place in the United States of America as Holder hereof shall
designate to the Trustee in writing. At the request of a Holder of at least
$10,000,000 aggregate principal amount of Series B Debentures, interest on such
Debentures will be payable by wire transfer within the continental United States
in immediately available funds to the bank account number specified in writing
by such Holder to the Registrar prior to the Regular Record Date.
The principal amount hereof and interest due on the Stated Maturity Date or
a Redemption Date (other than an Interest Payment Date) will be paid only upon
surrender of this Debenture at the principal corporate trust office of First
Union National Bank, Paying Agent, in Newark, NJ, or at such other office or
agency of the Paying Agent as the Company shall designate by written notice to
the Holder of this Debenture.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. The Holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes. The Holder of this Debenture, by his acceptance hereof, hereby waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Debenture is one of a duly authorized series of Debentures of the
Company (herein sometimes referred to as the "Series B Debentures"), specified
in the Indenture, limited in aggregate principal amount to One Hundred
Fifty-Four Million, Six Hundred Forty Thousand Dollars ($154,640,000) issued
under and pursuant to an Indenture dated as of January 1, 1998 executed and
delivered between the Company and First Union National Bank, as trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of June
1, 1998 between the Company and the Trustee (said Indenture as so supplemented
being hereinafter referred to as the "Indenture"). The Series B Debentures are
initially being issued to the Trust, to be held on behalf of the Trust by its
property trustee (the "Property Trustee"). Concurrently with the issuance of the
Series B Debentures, the Trust is issuing its trust securities, representing
undivided beneficial interests in the assets of the Trust and having an
aggregate liquidation amount equal to the principal amount of the Series B
Debentures, including the Trust's Floating Rate Capital Securities, Series B
(the "Preferred Securities"). By the terms of the Indenture, Debentures are
issuable in series which may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. Reference is made
to the Indenture and all indentures supplemental thereto for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Debentures. Each term used in
this Debenture which is defined in the Indenture and not defined herein shall
have the meaning assigned to it in the Indenture.
The following redemption provisions shall apply to the Series B Debentures:
Regular Redemption
The Series B Debentures may be redeemed in whole or part at the option of
the Company at any time on or after June 30, 2003 at a redemption price equal to
100% of the principal amount thereof plus accrued and unpaid interest to the
redemption date.
Special Event Redemption
If a Tax Event or an Investment Company Event (each, a "Special Event") has
occurred and is continuing, the Company may redeem the Series B Debentures, in
whole but not in part, at a price equal to 100% of the principal amount thereof
plus accrued and unpaid interest to the redemption date within 90 days following
the occurrence of such Special Event.
"Tax Event" means that the Company shall have received an opinion of
counsel (which may be counsel to the Company or an affiliate but not an employee
thereof and which must be acceptable to the Property Trustee) experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or such
pronouncement or decision is announced on or after the date of original issuance
of the Series B Capital Securities, there is more than an insubstantial risk
that (i) the Trust is, or will be, subject to federal income tax with respect to
interest on the Series B Debentures, (ii) interest payable by the Company on the
Series B Debentures is not, or will not be, deductible by the Company for
federal income tax purposes or (iii) the Trust is, or will be, subject to more
than a de minimis amount of other taxes, duties, assessments or other
governmental charges.
"Investment Company Event" means the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law") to the effect that the Trust is or will be considered
an "investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Series B Capital Securities.
At least 30 days but not more than 60 days before the Redemption Date, the
Trustee shall mail or caused to be mailed a notice of redemption by first-class
mail, postage prepaid, to each Holder of Series B Debentures to be redeemed.
In the event of redemption of this Debenture in part only, a new Series B
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
In case an Event of Default with respect to the Series B Debentures occurs
and is continuing, the principal of and interest on all of the Series B
Debentures may (and, in certain circumstances shall) be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Debenture upon compliance by the Company with certain
conditions set forth therein.
Subject to certain exceptions in the Indenture which require the consent of
every Holder, the Company and the Trustee may amend the Indenture or may waive
future compliance by the Company with any provisions of the Indenture with the
consent of the Holders of at least a majority in aggregate principal amount of
the Debentures of each series affected thereby provided that if the Series B
Debentures are held by the Trust, no such amendment or waiver that adversely
affects the holders of the Preferred Securities shall be effective without the
prior consent of the holders of at least a majority in aggregate liquidation
amount of the outstanding Preferred Securities issued under the Indenture at the
time outstanding. Subject to certain exceptions in the Indenture, without the
consent of any Holder of the Debentures issued under the Indenture, the Company
and the Trustee may amend the Indenture to cure any ambiguity, defect or
inconsistency, to bind a successor to the obligations of the Indenture, to
provide for uncertificated Debentures in addition to certificated Debentures, to
comply with any requirements of the Debentures and the Securities and Exchange
Commission in connection with the qualification of the Indenture under the TIA,
or to make any change that, in the reasonable judgment of the Company, does not
adversely affect the rights of any Holder of the Debentures. Amendments bind all
Holders and subsequent Holders of Debentures.
No reference herein to the Indenture and no provision of this Debenture or
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this
Debenture at the time and place and at the rate and in the money herein
prescribed.
So long as an Event of Default with respect to the Series B Debentures has
not occurred and is continuing, the Company shall have the right at any time and
from time to time to extend the interest payment period of the Series B
Debentures for up to 20 consecutive quarters (the "Extension Period"), provided
that no Extension Period shall extend beyond the Stated Maturity Date or
Redemption Date of any Series B Debenture. At the end of the Extension Period,
the Company shall pay all interest then accrued and unpaid (together with
interest thereon at the rate specified on a quarterly basis for the Series B
Debentures, as described in the Indenture, compounded quarterly, to the extent
that payment of such interest is enforceable under applicable law). During such
Extension Period, the Company may not declare or pay any dividend on, redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock. Prior to the termination of any such Extension Period, the
Company may further extend such Extension Period, provided that such Extended
Interest Payment Period together with all such previous and further extensions
thereof shall not exceed 20 consecutive quarters and shall not extend beyond the
Stated Maturity Date or Redemption Date of any Series B Debenture. At the
termination of any such Extended Interest Payment Period and upon the payment of
all amounts then due, the Company may elect to begin a new Extended Interest
Payment Period, subject to the foregoing restrictions.
Series B Debentures are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, this Debenture
is exchangeable for a like aggregate principal amount of Series B Debentures of
a different authorized denomination, as requested by the Holder surrendering the
same.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the Holder hereof upon surrender of
this Debenture for registration of transfer at the office or agency of the
Registrar accompanied by a written instrument or instruments of transfer in form
satisfactory to the Registrar duly executed by the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Series B Debentures of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to presentment for registration of transfer of this Debenture, the
Company, the Trustee, any Paying Agent and any Registrar may deem and treat the
Holder hereof as the absolute owner hereof (whether or not this Debenture shall
be overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the Registrar) for the purpose of receiving payment of or on
account of the principal hereof and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any Paying Agent nor any
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
This Debenture shall not be valid until an authorized signatory of the
Trustee manually signs and dates the Trustee's Certificate of Authentication
below.
IN WITNESS WHEREOF, the Company has caused this Debenture to be signed
manually or by facsimile by a duly authorized officer and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
By: MORTON A. PLAWNER
-----------------
[SEAL] Name: Morton A. Plawner
Title: Treasurer
Attest: PATRICK M. BURKE
- --------------------------------
[Assistant] Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debentures, of the series designated, referred to in the
within-mentioned First Supplemental Indenture.
FIRST UNION NATIONAL BANK, as Trustee
By: FRANK GALLAGHER
---------------
Name:Frank Gallagher
Authorized Signatory
Dated: June 26, 1998
-------------
ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign and
transfer this Debenture to:
______________________________________________________
(Insert assignee's social security or tax I.D. number)
______________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________ agent to transfer
this Debenture on the books of the Register. The agent may substitute another to
act for him.
Dated:__________________________ Signature:_________________________________
(Sign exactly as your name appears
on the other side of this Debenture)
Signature Guaranty:___________________