Exhibit 4.4
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) (THE
"DEPOSITORY") to PSEG ENERGY HOLDINGS L.L.C. (the "COMPANY") or its agent for
registration of transfer, exchange or payment, and such certificate issued is
registered in the name of CEDE & CO., or such other name as requested by an
authorized representative of the Depository, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, CEDE & CO., has an interest herein.
Unless and until this certificate is exchanged in whole or in part for Notes in
certificated form, this certificate may not be transferred except as a whole by
the Depository to a nominee thereof or by a nominee thereof to the Depository or
another nominee of the Depository or by the Depository or any such nominee to a
successor of the Depository or a nominee of such successor.
CUSIP NO.______ $_________
No. R-1
PSEG ENERGY HOLDINGS L.L.C.
7.75% Senior Note due 2007
PSEG ENERGY HOLDINGS L.L.C., a New Jersey limited liability company
(herein referred to as the "Company," which term includes any successor company
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of $
on April 16, 2007 (the "Stated Maturity Date"), unless redeemed or repurchased
in accordance with the provisions of this Note, and to pay interest on the
outstanding principal amount of this Note from , semi-annually in
arrears on April 16 and October 16 in each year, commencing
(each, an "Interest Payment Date") at 7.75% per annum until the principal hereof
is paid or duly provided for. Interest payable on each Interest Payment Date
will include interest accrued from and including
or from and including the most recent Interest Payment Date to which interest
has been paid or duly provided for, as the case may be, to but excluding such
Interest Payment Date. Interest will be computed based on a 360-day year
consisting of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, except as provided below, be paid to the person (the
"Holder") in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the
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April 1 and October 1 (whether or not a Business Day (as defined below)) next
preceding such Interest Payment Date (a "Regular Record Date"). Any such
interest not so punctually paid or duly provided for ("Defaulted Interest") will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the person in whose name this Note (or one or more Predecessor
Notes) is registered at the close of business on a special record date (the
"Special Record Date") for the payment of such Defaulted Interest to be fixed by
the Trustee hereinafter referred to, notice whereof shall be given to the Holder
of this Note not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more fully provided in the
Indenture.
For purposes of this Note, "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in Newark New Jersey and The City of New York are authorized or obligated by law
or executive order to close.
Payment of the principal of and any premium on this Note on the Stated
Maturity Date or date of earlier redemption or repurchase will be made against
presentation of this Note at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Payments of principal, premium, if any, and interest in respect of this
Note will be made in such coin or currency of the United States of America as at
the time of payment is legal tender for the payment of pubic and private debts
(i) in the case of payments on the Stated Maturity Date or date of earlier
redemption or repurchase, in immediately available funds and (ii) in the case of
payments on an Interest Payment Date, at the option of the Company, by check
mailed to the Holder entitled thereto at the applicable address appearing in the
Security Register or by transfer of immediately available funds to an account
maintained by the payee with a bank located in the United States of America;
provided, however, that so long as Cede & Co. is the Holder of this Note,
payments of interest on an Interest Payment Date will be made in immediately
available funds.
Any payment of principal, premium or interest required to be made on a day
that is not a Business Day need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if made on such
day and no interest shall accrue as a result of such delayed payment.
General. This Note is one of the duly authorized issues of securities of
the Company (the "Securities"), issued or to be issued in one or more series
under the Indenture, dated as of October 8, 1999, as supplemented by the First
Supplemental Indenture, dated as of September 30, 2002, between Wachovia Bank,
National Association (formerly known as First Union National Bank) (the
"Trustee") and the Company (together with all supplements thereto, the
"Indenture"), to which Indenture reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and each of the holders of the Securities and of the
terms upon which the Securities are, and are to be, authenticated and delivered
and transferred. The Notes will be limited to $350,000,000 aggregate principal
amount, except as permitted in the Indenture. All terms used in this Note which
are not defined herein shall have the meanings assigned to them in the
Indenture.
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Events of Default. If an Event of Default with respect to the Notes shall
have occurred and be continuing, the principal of the Notes may be declared due
and payable in the manner and with the effect provided in the Indenture.
Redemption. This Note will be redeemable at the option of the Company, in
whole or in part at any time, on at least 30 days but not more than 60 days
prior written notice mailed to the Holder hereof, at a price the ("Redemption
Price") equal to the greater of (i) 100% of the principal amount to be redeemed,
and (ii) the sum, as determined by the Quotation Agent (as defined below), of
the present values of the principal amount to be redeemed and the remaining
scheduled payments of interest thereon from the date of redemption (the
"Redemption Date") to April 16, 2007 (the "Remaining Life"), discounted from
their respective payment dates to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate (as defined below) plus 50 basis points, plus, in either case, accrued
interest thereon to the Redemption Date.
If money sufficient to pay the Redemption Price of and accrued interest on
all of this Note (or portion hereof) to be redeemed on a Redemption Date is
deposited with the Trustee or a Paying Agent on or before such Redemption Date
and certain other conditions are satisfied, then on and after such Redemption
Date, interest will cease to accrue on this Note (or such portion hereof) called
for redemption.
This Note will not be entitled to the benefit of, or be subject to, any
sinking fund.
Option to Elect Repayment Upon a Change of Control. In the event of a
Change of Control (as defined in the Indenture), the Holder of this Note shall
have the right to require the Company to repurchase this Note, in whole or in
part, at 101% of the principal amount thereof plus accrued interest to the
Repayment Date in accordance with the procedures set forth in the Indenture.
The Company shall comply with Rule 14e-1 under the Securities Act of 1934,
as amended (the "Exchange Act"), and any other applicable laws and regulations
in the event that a Change of Control occurs.
Notwithstanding the definition of term "Change of Control" in the
Indenture, for purposes of this Note, Change of Control shall mean the
occurrence of one or more of the following events: (i) PSEG (or its successors)
shall cease to own a majority of the outstanding Voting Stock of the Company,
(ii) at any time following the occurrence of the event described in clause (i),
a Person or group (as that term is used in Section 13(d)(3) of the Exchange Act)
of Persons (other than PSEG) shall have become, directly or indirectly, the
beneficial owner, or shall have acquired the absolute power to direct the vote,
of more than 35% of the outstanding Voting Stock of the Company, (iii) during
any twelve-month period, individuals who at the beginning of such period
constitute the Board of Managers (together with any new managers whose election
or nomination was approved by a majority of the managers then in office who were
either managers at the beginning of such period or who were previously so
approved) shall cease for any reason to constitute a majority of the Board of
Managers, unless approved by a majority of such Board of Managers in office at
the beginning of such period (including such new managers) or (iv) the Company
shall have consolidated with or merged with or into another
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Corporation or the properties and assets of the Company shall have been conveyed
or transferred substantially as an entirety to any Person in accordance with
Section 801 of the Indenture. Notwithstanding the foregoing, a Change of Control
shall be deemed not to have occurred if one or more of the above events occurs
or circumstances exist and, after giving effect thereto, the Securities are
rated no less than "BBB-" by Standard & Poor's Ratings Group and "Baa3" by
Moody's Investors Service Inc.
Terms not otherwise defined in this Section shall have the respective
meanings ascribed thereto in the Indenture.
Certain Definitions.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the Remaining
Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity with the Remaining Life of the Notes to be redeemed.
"Comparable Treasury Price" means, with respect to any Redemption Date,
the average of four Reference Treasury Dealer Quotations, after excluding the
highest and lowest of such Reference Treasury Dealer Quotations, or, if the
Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company. "Reference Treasury Dealer" means: (i) each of Lehman Brothers Inc. and
Credit Suisse First Boston LLC and their respective successors; provided,
however, that if the foregoing shall cease to be primary United States
Government securities dealers in New York City (a "Primary Treasury Dealer"),
the Company shall substitute therefor another Primary Treasury Dealer; and (ii)
any other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semi-annual yield to maturity of the Comparable Treasury
Issue, calculated on the third Business Day preceding such Redemption Date,
using a price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for such Redemption
Date.
Certain Financial Covenants. The provisions of this section shall be
applicable to the Notes until such time as the Notes are rated at least BBB by
Standard & Poor's Ratings Group and Baa2 by Moody's Investors Service, Inc., in
each case with a stable outlook.
Limitations on the Incurrence of Debt. The Company shall not incur
additional Consolidated Recourse Indebtedness (as defined below), other than
Permitted Indebtedness (as
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defined below), unless, on a pro forma basis giving effect to the incurrence of
the additional Consolidated Recourse Indebtedness, (i) the Debt Service Coverage
Ratio (as defined below) of the Company would be at least 2.0 to 1.0 and (ii)
the ratio obtained by dividing Consolidated Recourse Indebtedness by Recourse
Capitalization (as defined below) would not exceed 0.60 to 1.0
Limitation on Asset Sales. Without the consent of the holders of a
majority in principal amount of the outstanding Notes voting as a separate
series under the Indenture, and except with respect to any transaction to which
the provisions of Article Eight of the Indenture would relate, the Company shall
not, and shall not permit any of its Subsidiaries to, consummate any Asset Sale
(as defined below), if (i) the aggregate net book value of all such Asset Sales
consummated during the four calendar quarters immediately preceding any date of
determination would exceed 10% of the Total Assets of the Company and its
consolidated Subsidiaries as shown on the line item of the same title on the
Company's most recent quarterly audited or unaudited consolidated balance sheet;
provided however, that any such Asset Sale shall be disregarded for purposes of
the 10% limitation specified above to the extent that the net proceeds thereof
received by the Company or any Subsidiary are (a) within 12 months of the
consummation of such Asset Sale, invested or reinvested by the Company or any of
its Subsidiaries in a Permitted Business (as defined below), (b) used by the
Company or any of its Subsidiaries to repay Indebtedness of the Company or such
Subsidiary, or (c) retained by the Company or any of its Subsidiaries.
Definitions. The following are definitions of certain terms used in this
section. Capitalized terms used and not otherwise defined in this section shall
have the meanings ascribed thereto in this Note and the Indenture.
"Asset Sale" means any sale for cash of any properties or assets of the
Company or any of its Subsidiaries including by way of the sale by the Company
or any of its Subsidiaries of equity interests in any Subsidiary or by way of a
Sale and Leaseback Transaction or similar transaction; provided, however, that
the term Asset Sale shall not include: (i) any sales of accounts receivable,
(ii) sales of any properties or assets sold prior to December 31, 2002 or held
for sale or classified as discontinued operations as of that date, (iii) any
distribution from partnership investments of PSEG Resources LLC, (iv) any sales
of properties or assets required to be sold to conform with governmental
requirements, (v) any sales of properties or assets that, in the Company's
opinion are obsolete, worn out or no longer useful or necessary in connection
with the operation of the business of the Company or its Subsidiaries, or (vi)
any sales of properties or assets to the Company or a wholly-owned Subsidiary of
the Company.
"Consolidated Recourse Indebtedness" means, without duplication,
Indebtedness of the Company and the Material Subsidiaries, but excluding (i)
non-recourse Indebtedness, (ii) Indebtedness in the form of performance or bid
bond support or commitments, (iii) Indebtedness in the form of equity support or
commitments, and (iv) Indebtedness owing to Public Service Enterprise Group
Incorporated or any affiliate thereof.
"Consolidated Member's Equity" means the consolidated member's equity of
the Company as determined in accordance with generally accepted accounting
principles in the United States as of the date of any determination thereof;
provided that, Accumulated Other
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Comprehensive (Loss) Income as shown on the line item of the same title on the
Company's consolidated balance sheet shall be disregarded.
"Debt Service Coverage Ratio" means the ratio obtained by dividing, (a)
without duplication, (i) the sum of (x) EBITDA for the preceding four fiscal
quarters, (y) non-cash impairment charges against EBITDA, and (z) return of
capital from any Subsidiary of the Company, less (ii) consolidated interest
expense that is not a direct obligation of the Company and/or any Material
Subsidiary; by (b) interest expense for the preceding four fiscal quarters that
is a direct obligation of the Company and/or any Material Subsidiary. For
purposes of this definition, the Company may elect to include in interest
expense interest on the maximum amount of Indebtedness permitted to be drawn
under a credit facility at the time such credit facility is first entered into
(to the extent such Indebtedness is not Permitted Indebtedness), in which case
(A) subsequent draws under such credit facility up to the maximum amount shall
not constitute a separate incurrence of Indebtedness, and (B) such maximum
amount shall be used in the calculation of the Debt Service Coverage Ratio for
subsequent incurrences of additional Consolidated Recourse Indebtedness. If the
Company makes such an election, the interest rate applicable to such credit
facility on the date of determination shall be used to determine interest
expense on the maximum amount of Indebtedness that may be incurred thereunder.
"EBITDA" means, for the Company, the sum of Operating Income, Other Income
and Depreciation and Amortization, each as shown on the line item of the same
title on the Company's consolidated income statement for the relevant period.
"Five Year Credit Facility" means the $495,000,000 Revolving Credit
Facility and Reimbursement Agreement, dated as of May 12, 1999, among the
Company, the various banks named therein and the various agents referred to
therein, as in effect from time to time.
"Permitted Business" means a business that is the same or similar to the
business of the Company or any Subsidiary as of April 16, 2003, or any business
reasonably related thereto.
"Permitted Indebtedness" means (i) Indebtedness outstanding as of April
16, 2003, (ii) Indebtedness not to exceed $495 million at any one time under the
Company's Five Year Credit Facility (or any extension, renewal or replacement
thereof), (iii) Indebtedness incurred to refinance, retire or replace any
Indebtedness of the Company or any Subsidiary outstanding as of April 16, 2003
(including successive refinancings or replacements of such Indebtedness) in a
principal amount no greater than the Indebtedness to be refinanced, retired or
replaced (plus any premiums, costs and expenses payable in connection
therewith), (iv) guarantees by the Company or any Material Subsidiary of any
Consolidated Recourse Indebtedness of the Company or another Material Subsidiary
and (v) Indebtedness the net proceeds of which are used to repurchase
outstanding Securities of any series issued under the Indenture pursuant to
Section 1007 thereof or deposited to defease Securities of any series issued
under the Indenture pursuant to Article 14 thereof.
"Recourse Capitalization" means the sum of Consolidated Recourse
Indebtedness and Consolidated Member's Equity, each as at the date of any
determination thereof.
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Modification and Waivers; Obligations of the Company Absolute. The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series. Such amendment may
be effected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of all
Securities issued under the Indenture at the time Outstanding and affected
thereby. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all Outstanding Securities, to waive
compliance by the Company with certain provisions of the Indenture. Furthermore,
provisions in the Indenture permit the Holders of a majority in aggregate
principal amount of the Outstanding Securities of an individual series, to
waive, on behalf of all of the Holders of Securities of such individual series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver shall be conclusive and binding upon the Holder of this Note
and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency
herein prescribed.
Defeasance and Covenant Defeasance. The Indenture contains provisions for
defeasance at any time of (a) the entire indebtedness of the Company on this
Note and (b) certain restrictive covenants and the related defaults and Events
of Default, upon compliance by the Company with certain conditions set forth
therein, which provisions apply to this Note.
Authorized Denominations. The Notes are issuable only in registered form
without coupons in denominations of $1,000 and integral multiples thereof.
Registration of Transfer or Exchange. As provided in the Indenture and
subject to certain limitations herein and therein set forth, the transfer of
this Note is registrable in the Security Register upon surrender of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations herein and
therein set forth, the Notes are exchangeable for a like aggregate principal
amount of Notes of different authorized denominations, as requested by the
Holders surrendering the same.
This Note is a Global Security. If The Depository Trust Company is at any
time unwilling, unable or ineligible to continue as depository and a successor
depository is not appointed by the Company within 90 days or an Event of Default
under the Indenture has
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occurred and is continuing, the Company will issue Notes in certificated form in
exchange for this Global Security. In addition, the Company may at any time
determine not to have Securities represented by one or more Global Securities
and, in such event, will issue Notes in certificated form in exchange in whole
for this Global Security. In any such instance, an owner of a beneficial
interest in this Global Security will be entitled to physical delivery in
certificated form of Notes equal in principal amount to such beneficial interest
and to have such Notes registered in its name. Notes so issued in certificated
form will be issued in denominations of $1,000 and integral multiples thereof
and will be issued in registered form only, without coupons.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder of this Note as the owner hereof for all purposes, whether or not this
Note be overdue, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
Defined Terms. All terms used in this Note which are defined in the
Indenture and are not otherwise defined herein shall have the meanings assigned
to them in the Indenture. The term "Board of Directors" as referred to in the
Indenture shall, for all purposes of this Note, mean the "Board of Managers" as
defined in this Note.
Governing Law. This Note shall be governed by and construed in accordance
with the laws of the State of New Jersey.
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Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its facsimile company seal.
Dated: , 2003 PSEG ENERGY HOLDINGS L.L.C.
By:
----------------------------
Vice President
Attest:
----------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Trustee
By:
----------------------------
Authorized Signatory
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Insert assignee's soc. sec. or tax I.D. No.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint ______________________ agent to transfer this Security
on the books of the Company. The agent may substitute another to act for him.
Dated: Signed:
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(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee:
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OPTION TO ELECT REPAYMENT FORM
If you wish to elect to have this Note repurchased by the Company upon
a Change of Control, check this box: |_|
If you wish to elect to have only part of this Note repurchased by the
Company upon a Change of Control, state the amount: $
Dated: Signed:
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(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee:
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