Exhibit 3.6
TRUST AGREEMENT
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This TRUST AGREEMENT, dated as of December 27, 2001 (this "Trust
Agreement"), among PSEG Power LLC, a Delaware limited liability company, as
"Depositor," and The Bank of New York, a New York banking corporation, The Bank
of New York (Delaware), a Delaware banking corporation, and Mark G. Kahrer, as
trustees (the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby shall be known as "PSEG Power Capital Trust
I," in which name the Trustees, or the Depositor to the extent provided herein,
may conduct the business of the Trust, make and execute contracts, and sue and
be sued.
2. The Depositor hereby assigns, transfers conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustees hereby declare that they will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitutes a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"),
and that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in accordance with the provisions of
the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustees may take all actions which the Depositor deems
necessary, convenient or incidental to effect the transactions contemplated
herein and as the Trustees shall be directed in writing by the Depositor.
4. The Depositor, as the depositor of the Trust, is hereby authorized (i)
to file with the Securities and Exchange Commission (the "Commission") and
execute, in each case on behalf of the Trust, (a) the Registration Statement on
Form S-3 or other appropriate form (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to the 1933 Act
Registration Statement (including any preliminary prospectus, prospectus or
prospectus supplements, and the exhibits contained therein), relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or any other national stock exchange or The
Nasdaq Stock Market (each, an "Exchange") and execute on
behalf of the Trust one or more listing applications and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws of such jurisdictions as the Depositor, on behalf of the Trust, may
deem necessary or desirable; (iv) to execute and deliver letters or documents
to, or instruments for filing with, a depository relating to the Preferred
Securities; and (v) to execute on behalf of the Trust that certain Underwriting
Agreement relating to the Preferred Securities, among the Trust, the Depositor
and the several Underwriters named therein, substantially in the form included
as an exhibit to the 1933 Act Registration Statement. In the event that any
filing referred to in clauses (i), (ii) and (iii) above is required by the rules
and regulations of the Commission, an Exchange or state securities or blue sky
laws, to be executed on behalf of the Trust by any of the Trustees, Mark G.
Kahrer, in his capacity as a trustee of the Trust, is hereby authorized and
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing. In connection with all of the foregoing, the Depositor
hereby constitutes and appoints Mark G. Kahrer as its true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as the Depositor might or could to in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or his
respective substitute, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. The Depositor hereby agrees, to the fullest extent permitted by
applicable law, to (i) reimburse the Trustees for all reasonable expenses
(including reasonable fees and expenses of counsel and other experts) and (ii)
indemnify, defend and hold harmless the Trustees and any of the officers,
directors, employees and agents of the Trustees (the "Indemnified Persons") from
and against any and all losses, damages, liabilities, claims, actions, suits,
costs, expenses, disbursements (including the reasonable fees and expenses of
counsel), taxes and penalties of any kind and nature whatsoever (collectively,
"Expenses"), to the extent that such
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Expenses arise out of or are imposed upon or asserted at any time against such
Indemnified Persons with respect to the performance of this Trust Agreement, the
creation, operation or termination of the Trust or the transactions contemplated
hereby; provided, however, that the Depositor shall not be required to indemnify
any Indemnified Person for any Expenses which are a result of the willful
misconduct, bad faith or gross negligence of such Indemnified Person.
8. The Depositor may, in its sole discretion, dissolve and terminate the
Trust.
9. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS THEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
PSEG POWER LLC,
as Depositor
By: /s/ Morton A. Plawner
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Name: Morton A. Plawner
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Marie E. Trimboli
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Name: Marie E. Trimboli
Title: Assistant Vice President
THE BANK OF NEW YORK (DELAWARE)
as Trustee
By: /s/ William T. Lewis
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Name: William T. Lewis
Title: Senior Vice President
MARK G. KAHRER, as Trustee
/s/ Mark G. Kahrer
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