EXHIBIT 4
SUPPLEMENTAL MORTGAGE
----------
Supplemental Indenture
Dated June 1, 2004
----------
SUPPLEMENTAL TO
FIRST AND REFUNDING MORTGAGE
DATED AUGUST 1, 1924
----------
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
To
WACHOVIA BANK, NATIONAL ASSOCIATION
Trustee
21 South Street
Morristown, New Jersey 07960
----------
PROVIDING FOR THE ISSUE OF
$175,000,000 FIRST AND REFUNDING MORTGAGE BONDS,
FLOATING RATE SERIES A DUE 2006
- --------------------------------------------------------------------------------
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
/s/ Donald S. Leibowitz
- ---------------------------
(DONALD S. LEIBOWITZ, ESQ.)
TABLE OF CONTENTS
PAGE
----
RECITALS................................................................. 1
FORM OF BOND [FACE]...................................................... 2
FORMS OF CERTIFICATES OF AUTHENTICATION.................................. 3
FORM OF BOND [REVERSE]................................................... 4
GRANTING CLAUSES......................................................... 7
ARTICLE I.
BONDS OF THE FLOATING RATE SERIES A.
DESCRIPTION OF FLOATING RATE SERIES A.................................... 7
ARTICLE II.
REDEMPTION OF BONDS--FLOATING RATE SERIES A.
SECTION 2.01. Redemption--Redemption Prices.............................. 8
SECTION 2.02. Redemption at Election of Company.......................... 8
SECTION 2.03. Redemptions Pursuant to Section 4C of Article Eight
of the Indenture........................................ 9
SECTION 2.04. Called Bonds to be Surrendered--Interest to Cease.......... 9
SECTION 2.05. Bonds Called in Part....................................... 9
SECTION 2.06. Provisions of Indenture Not Applicable..................... 9
ARTICLE III.
MISCELLANEOUS.
SECTION 3.01. Authentication of Bonds of Floating Rate Series A.......... 9
SECTION 3.02. Authenticating Agent....................................... 9
SECTION 3.03. Additional Restrictions on Authentication
of Additional Bonds Under Indenture..................... 10
SECTION 3.04. Restriction on Dividends................................... 10
SECTION 3.05. Use of Facsimile Seal and Signatures....................... 10
SECTION 3.06. Time for Making of Payment................................. 10
SECTION 3.07. Effective Period of Supplemental Indenture................. 11
SECTION 3.08. Effect of Approval of Board of Public Utilities
of the State of New Jersey.............................. 11
SECTION 3.09. Execution in Counterparts.................................. 11
Acknowledgements......................................................... 12
Certificate of Residence................................................. 14
SUPPLEMENTAL INDENTURE, dated the 1st day of June, 2004 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 WACHOVIA 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 WACHOVIA 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:
COUNTY OFFICE BOOK NUMBER PAGE NUMBER
- ----------------------------------------------------------------------
Atlantic Clerk's 1955 of Mortgages 160
Bergen Clerk's 94 of Chattel Mortgages 123 etc.
693 of Mortgages 88 etc.
Burlington Clerk's 52 of Chattel Mortgages Folio 8, etc.
177 of Mortgages Folio 354, etc.
Camden Register's 45 of Chattel Mortgages 184 etc.
239 of Mortgages 1 etc.
Cumberland Clerk's 786 of Mortgages 638 & c.
Essex Register's 437 of Chattel Mortgages 1-48
T-51 of Mortgages 341-392
Gloucester Clerk's 34 of Chattel Mortgages 123 etc.
142 of Mortgages 7, etc.
Hudson Register's 453 of Chattel Mortgages 9, etc.
1245 of Mortgages 484, etc.
Hunterdon Clerk's 151 of Mortgages 344
Mercer Clerk's 67 of Chattel Mortgages 1 etc.
384 of Mortgages 1 etc.
Middlesex Clerk's 113 of Chattel Mortgages 3 etc.
437 of Mortgages 294, etc.
Monmouth Clerk's 951 of Mortgages 291 & c.
Morris Clerk's N-3 of Chattel Mortgages 446 etc.
F-10 of Mortgages 269 etc.
Ocean Clerk's 1809 of Mortgages 40
Passaic Register's M-6 of Chattel Mortgages 178, etc.
R-13 of Mortgages 268 etc.
Salem Clerk's 267 of Mortgages 249 & c.
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 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:
COUNTY OFFICE BOOK NUMBER PAGE 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 1,221
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 December 1, 2003 (No. 4), 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 December 1, 2003 (No. 4) 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 Company desires to provide for the issue of $175,000,000
principal amount of bonds secured by said Indenture of a series to be designated
as "First and Refunding Mortgage Bonds, Floating Rate Series A due 2006"
(hereinafter sometimes called "Floating Rate Series A"); and
WHEREAS, the text of the bonds of the Floating Rate Series A and of
the certificates of authentication to be borne by the bonds of the Floating Rate
Series A shall be substantially of the following tenor:
[FORM OF BOND]
[FACE]
REGISTERED REGISTERED
NUMBER AMOUNT
RU $ 175,000,000
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
FIRST AND REFUNDING MORTGAGE BOND,
FLOATING RATE SERIES A DUE 2006
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 ________________, or registered assigns, on the surrender
hereof, the principal sum of One Hundred Seventy Five Million Dollars, on June
23, 2006, unless redeemed earlier thereto in accordance with this Bond, and to
pay interest on the outstanding principal amount of this Bond from the date
hereof, at a per annum rate of LIBOR plus 0.125%, reset and calculated as more
fully set forth on the reverse hereof, and until payment of said principal sum,
such interest to be payable March 23, June 23, September 23, and December 23, in
each year, beginning September 23, 2004.
Both the principal hereof and interest hereon shall be paid at the
principal corporate trust office of Wachovia Bank, National Association, in the
City of Morristown, State of New Jersey, or (at the option of the registered
owner) at the office or agency of the Company, in the Borough of Manhattan, City
and State of New
York, 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.
Reference is hereby made to the further provisions of this Bond set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Bond shall not be entitled to any security or benefit under the
indenture mentioned on the reverse hereof, 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 or on behalf of
Wachovia Bank, National Association, as Trustee, or by or on behalf of 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
June 1, 2004, as secured thereby.
WACHOVIA BANK, NATIONAL
ASSOCIATION, TRUSTEE
By
-------------------------------------
Authorized Signatory
[FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION]
ALTERNATE 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
June 1, 2004, as secured thereby.
WACHOVIA BANK, NATIONAL
ASSOCIATION, TRUSTEE
By
-------------------------------------
Authenticating Agent
By
-------------------------------------
Authorized Signatory
[FORM OF BOND]
[REVERSE]
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
FIRST AND REFUNDING MORTGAGE BOND,
FLOATING RATE SERIES A DUE 2006
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, as supplemented and amended
by supplemental indentures thereto, including supplemental indentures dated
March 1, 1942, June 1, 1949, May 1, 1950, October 1, 1953, May 1, 1954, November
1, 1956, September 1, 1957, August 1, 1958, June 1, 1959, September 1, 1960,
August 1, 1962, June 1, 1963, September 1, 1964, September 1, 1965, June 1,
1967, June 1, 1968, April 1, 1969, March 1, 1970, May 15, 1971, November 15,
1971, April 1, 1972, March 1, 1974, October 1, 1974, April 1, 1976, September 1,
1976, October 1, 1976, June 1, 1977, September 1, 1977, November 1, 1978, July
1, 1979, September 1, 1979 (No. 1), September 1, 1979 (No. 2), November 1, 1979,
June 1, 1980, August 1, 1981, April 1, 1982, September 1, 1982, December 1,
1982, June 1, 1983, August 1, 1983, July 1, 1984, September 1, 1984, November 1,
1984 (No. 1), November 1, 1984 (No. 2), July 1, 1985, January 1, 1986, March 1,
1986, April 1, 1986 (No. 1), April 1, 1986 (No. 2), March 1, 1987, July 1, 1987
(No. 1), July 1, 1987 (No. 2), May 1, 1988, September 1, 1988, July 1, 1989,
July 1, 1990 (No. 1), July 1, 1990 (No. 2), June 1, 1991 (No. 1), June 1, 1991
(No. 2), November 1, 1991 (No. 1), November 1, 1991 (No. 2), November 1, 1991
(No. 3), February 1, 1992 (No. 1), February 1, 1992 (No. 2), June 1, 1992 (No.
1), June 1, 1992 (No. 2), June 1 , 1992 (No. 3), January 1, 1993 (No. 1),
January 1, 1993 (No. 2), March 1, 1993, May 1, 1993, May 1, 1993 (No. 2), May 1,
1993 (No. 3), July 1, 1993, August 1, 1993, September 1, 1993, September 1, 1993
(No. 2), November 1, 1993, February 1, 1994, March 1, 1994 (No. 1), March 1,
1994 (No. 2), May 1, 1994, June 1, 1994, August 1, 1994, October 1, 1994 (No.
1), October 1, 1994 (No. 2), October 1, 1995 (No. 1), October 1, 1995 (No. 2),
January 1, 1996 (No. 1), January 1, 1996 (No. 2), December 1, 1996, April 1,
1997, June 1, 1997, May 1, 1998, September 1, 2002, August 1, 2003, December 1,
2003 (No. 1), December 1, 2003 (No. 2), December 1, 2003 (No. 3) and December 1,
2003 (No. 4) each duly executed by the Company and Wachovia Bank, National
Association (formerly known as Fidelity Union Trust Company), a national banking
association organized under the laws of the United States of America, as
Trustee. This Bond is one of the Floating Rate Series A due 2006, which series
is limited to aggregate principal amount of $175,000,000 and is issued pursuant
to said supplemental indenture dated June 1, 2004. 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 Floating Rate Series A due 2006, in
which this Bond is included, are designated "First and Refunding Mortgage Bonds,
Floating Rate Series A due 2006".
In case of the happening of an event of default as specified in said
indenture and said supplemental indenture dated March 1, 1942, the principal sum
of the Bonds of this series may be declared or may become due and payable
forthwith, in the manner and with the effect in said indenture provided.
Interest on this Bond shall accrue from and including June 25, 2004
(or from the most recent Interest Payment Date to which interest has been paid
or duly provided for) to but excluding the applicable Interest Payment Date,
stated maturity or date of earlier redemption, as the case may be and shall be
payable quarterly in arrears on each March 23, June 23, September 23, and
December 23, commencing September 23, 2004. The interest rate on the Bonds of
this series shall be reset quarterly and the Bonds shall bear interest at a per
annum rate (computed by the Calculation Agent (as defined below) on the basis of
the actual number of days elapsed over a 360-day year) equal to LIBOR (as
defined below) for the applicable Interest Period (as defined below), plus
0.125%, subject to the maximum interest rate permitted by New Jersey law, as
such law may be modified by United States law of general application.
If any Interest Payment Date (other than at stated maturity or
redemption date) would otherwise be a day that is not a Business Day (as defined
below), such Interest Payment Date shall be postponed to the next succeeding day
that is a Business Day, unless that next succeeding Business Day falls in the
next succeeding calendar month, in which case the Interest Payment Date will be
the immediately preceding Business Day. If the stated maturity or redemption
date of this Bond would otherwise be a day that is not a Business Day, such
stated maturity or redemption date, as the case may be, will be the next
succeeding day that is a Business Day, and no additional interest shall accrue
as a result of such delayed payment.
Promptly upon such determination, the Calculation Agent will notify
the Company and the Trustee, if the Trustee is not then serving as the
Calculation Agent, of the interest rate for the new Interest Period. The
interest rate determined by the Calculation Agent, absent manifest error, shall
be binding and conclusive upon the Company, the beneficial owners and holders of
the Bonds and the Trustee.
"Calculation Agent" means Wachovia Bank, National Association, or its
successor appointed by the Company, acting as calculation agent.
"Interest Determination Date" means the second London Business Day (as
defined below) immediately preceding the first day of the relevant Interest
Period.
"Interest Payment Date" means each March 23, June 23, September 23,
and December 23, commencing September 23, 2004.
"Interest Period" means the period commencing on an Interest Payment
Date for the Bonds of this series (or, with respect to the initial Interest
Period only, commencing on the issue date for the Bonds) and ending on the day
before the next succeeding Interest Payment Date for the Bonds.
"LIBOR" for any Interest Determination Date will be the offered rate
for deposits in U.S. dollars having an index maturity of three months for a
period commencing on the second London Business Day immediately following such
Interest Determination Date in amounts of not less than U.S. $1,000,000, as such
rate appears on Telerate Page 3750 (as defined below) at approximately 11:00
a.m., London time, on such Interest Determination Date (the "Reported Rate").
"Telerate Page 3750" means the display designated on page 3750 on Moneyline
Telerate, Inc. (or such other page as may replace the 3750 page on that service
(or any successor service) or such other service as may be nominated by the
British Bankers' Association for the purpose of displaying London interbank
offered rates for U.S. dollar deposits).
If the following circumstances exist on any Interest Determination
Date, the Calculation Agent shall determine "LIBOR" for the Bonds of this series
as follows:
(1) In the event no Reported Rate appears on Telerate Page 3750 as of
approximately 11:00 a.m., London time, on such Interest
Determination Date, the Calculation Agent shall request the
principal London offices of each of four major banks in the
London interbank market selected by the Calculation Agent (after
consultation with the Company) to provide a quotation (the "Rate
Quotation") at which three month U.S. dollar deposits in amounts
of not less than U.S. $1,000,000 are offered by it to prime banks
in the London interbank market, as of approximately
11:00 a.m., London time, on such Interest Determination Date,
that is representative of a single transaction at such time (the
"Representative Amounts"). If at least two Rate Quotations are
provided, LIBOR for such Interest Determination Date will be the
arithmetic mean of such quotations obtained by the Calculation
Agent.
(2) In the event no Reported Rate appears on Telerate Page 3750 as of
approximately 11:00 a.m., London time, on such Interest
Determination Date and there are fewer than two Rate Quotations,
LIBOR for such Interest Determination Date will be the arithmetic
mean of the rates quoted at approximately 11:00 a.m., New York
City time, on such Interest Determination Date by three major
banks in New York City selected by the Calculation Agent (after
consultation with the Company) for loans in Representative
Amounts in U.S. dollars to leading European banks having an index
maturity of three months for a period commencing on the second
London Business Day immediately following such Interest
Determination Date; provided, however, that if fewer than three
banks selected by the Calculation Agent are quoting such rates,
LIBOR for such Interest Determination Date will be the same as
LIBOR in effect for the Interest Period in which such Interest
Determination Date falls.
"Business Day" means any day, other than a Saturday or Sunday, (i) on
which banking institutions in New York, New York are not required or authorized
by law, regulation or executive order to close, (ii) which is also a London
Business Day or (iii) a day on which the Trustee's corporate trust office is not
closed for business. "London Business Day" means a day that is a day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market.
All percentages resulting from any calculation of any interest rate
for this Bond shall be rounded, if necessary, to the nearest one hundred
thousandth of a percentage point, with five one millionths of a percentage point
rounded upward and all dollar amounts shall be rounded to the nearest cent, with
one-half cent being rounded upward.
As more fully provided in said supplemental indenture dated June 1,
2004, the Bonds of this series are subject to redemption at any time prior to
maturity, on notice given as below provided (a) in whole at any time on or after
December 23, 2004, or in part from time to time on any Interest Payment Date on
or after December 23, 2004, at the election of the Company (subject to the
approval of the Board of Public Utilities of the State of New Jersey first
applied for and obtained), at a redemption price equal to 100% of the principal
amount of the Bonds of this series to be redeemed and; and (b) by the
application of proceeds of released property or other money held by the Trustee
and which, pursuant to the provisions of said indenture, as amended and
supplemented, is applied to the redemption of Bonds of this series, upon payment
of the "Special Redemption Price" of 100% of the principal amount thereof;
together in each case with accrued interest to the date fixed for redemption.
Notice of any such redemption shall be given by mailing the same to the
respective registered owners of the Bonds of this series so called for
redemption, not less than 30 nor more than 40 days in advance of the date fixed
for redemption. In the case of redemption of Bonds of this series at the
election of the Company, the notice of redemption may be conditioned upon the
deposit of the total regular redemption price of all the Bonds so called, with
accrued interest thereon to the redemption date, with the Trustee on or before
the date fixed for redemption.
If this Bond or any portion thereof be called for redemption and
payment be duly provided therefor, interest shall cease to accrue on this Bond
or such portion on the date fixed for such redemption.
This Bond is transferable, but only as provided in said indenture,
upon surrender hereof, by the registered owner in person or by attorney duly
authorized in writing, at either of said offices where the principal hereof and
interest hereon are payable; 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 denominations of $1,000 and any multiple of $1,000. Such fully registered
Bonds of the several denominations may be exchanged for fully registered
Bonds of other authorized denominations, but only as provided in said indenture,
upon surrender thereof, by the registered owner in person or by attorney duly
authorized in writing, at either of said offices where the principal thereof and
interest thereon are payable. No service charge shall be made for any such
exchange, 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 shall not be required to issue or make transfers or
exchanges of Bonds of this series for a period of ten days next preceding any
Interest Payment Date or next preceding the date of any drawing of such Bonds to
be redeemed, and the Company shall not be required to make transfers or
exchanges of any such Bonds drawn in whole or in part for such redemption.
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.
----------
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 series hereinafter described, when duly authenticated by or on
behalf of 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 June 1, 2004
subsequent 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 the
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 FLOATING RATE SERIES A.
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, Floating Rate Series A due 2006"; shall be limited to
the aggregate principal amount of $175,000,000; shall mature on June 23, 2006;
shall bear interest at a per annum rate of LIBOR plus 0.125%, calculated and
reset as more fully set forth in the form of the Bond hereinbefore described,
payable in arrears on March 23, June 23, September 23, and December 23 of each
year, commencing September 23, 2004; 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 corporate trust office of Wachovia Bank, National
Association, in the City of Morristown, State of New Jersey, or, as may be
desired by the persons entitled to receive such principal and interest
respectively, at the office or agency of the Company in the Borough of
Manhattan, City and State of New York; shall be issuable only in the form of
fully registered bonds in the denominations of $1,000 and any multiple of
$1,000; and the several denominations shall be interchangeable. The date of each
bond of the Floating Rate Series A 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 June 25, 2004.
The Company shall not be required to issue or make transfers or
exchanges of bonds of the Floating Rate Series A for a period of ten days next
preceding any Interest Payment Date or next preceding the date of any drawing of
such bonds to be redeemed, and the Company shall not be required to make
transfers or exchanges of any such bonds drawn in whole or in part for such
redemption.
ARTICLE II.
REDEMPTION OF BONDS OF FLOATING RATE SERIES A.
SECTION 2.01. Redemption--Redemption Prices. Bonds of the Floating
Rate Series A shall be subject to redemption at any time:
(a) as a whole at any time on or after December 23, 2004, or in part
from time to time on any Interest Payment Date on or after
December 23, 2004, at the election of the Company (subject to the
approval of the Board of Public Utilities of the State of New
Jersey first applied for and obtained) as provided in Section
2.02 hereof, upon payment of 100% of the principal amount of the
bonds of the Floating Rate Series A to be redeemed (said amount
(exclusive of accrued interest) is herein referred to as the
"regular redemption price");
(b) at any time by the application of any proceeds of released
property or other money held by the Trustee and which, pursuant
to Section 4C of Article Eight of the Indenture, as amended and
supplemented, is applied to the redemption of bonds of the
Floating Rate Series A, upon payment of 100% of the principal
amount thereof specified as the "Special Redemption Price" in the
form of Bond hereinbefore set forth (said amount (exclusive of
accrued interest) is herein referred to as the "special
redemption price");
together in each case with accrued interest to the date fixed for
redemption.
SECTION 2.02. Redemption at Election of Company. The election of the
Company to redeem any of the bonds of the Floating Rate Series A shall be
evidenced by a resolution of the Board of Directors of the Company calling for
redemption on an Interest Payment Date all or a stated principal amount thereof.
Any such call may be conditioned upon the deposit with the Trustee, on or before
such redemption date, of the total regular redemption price of the bonds so
called, with accrued interest thereon to the redemption date. At least 40 days
prior to such redemption date (or at such later time as shall be satisfactory to
the Trustee) the Company shall file with the Trustee a certified copy of such
resolution. Unless such call shall be conditioned upon the deposit of the
regular redemption price and accrued interest with the Trustee on or before the
redemption date and unless the notice below provided for shall so state, the
Company shall on or before such redemption date deposit with the Trustee the
total regular redemption price of all the bonds so called, with accrued interest
thereon to the redemption date.
If the Company elects to redeem less than all of the bonds of the
Floating Rate Series A, the particular bonds or portions thereof to be redeemed
shall, upon request of the Company, be drawn by lot by the Trustee, according to
such method as it shall deem proper, from the bonds of said series then
outstanding. The Trustee shall certify to the Company the serial numbers of the
bonds so drawn.
The Company shall thereupon give notice of such redemption, in the
manner and substantially in the form provided in Section 2.03 hereof to be given
in the case of bonds of the Floating Rate Series A called pursuant to Section 4C
of Article Eight of the Indenture, except that (1) such notice shall state that
the bonds specified have been called for redemption at the election of the
Company, and that they will be payable on the date specified in the resolution
of the Board of Directors of the Company at a stated amount (which shall be the
regular redemption price plus any accrued and unpaid interest to the redemption
date), (2) if all the bonds of the Floating Rate Series A be called, the notice
shall so state and may omit the serial numbers thereof, (3) if the date fixed
for redemption be other than an Interest Payment Date, the notice shall state
that the bonds will be payable at the regular redemption price plus accrued
interest to the redemption date, (4) the mailing of such notice to registered
owners of bonds of said series shall take place not less than 30 nor more than
40 days in advance of the date fixed for redemption, but failure duly to give
such notice of redemption to the registered owner of any bond called for
redemption in whole or in part shall not affect the validity of the proceedings
for the redemption of any other bond, and (5) if the call of such bonds for
redemption shall have been conditioned upon the deposit of the regular
redemption price and accrued interest with the Trustee on or before the
redemption date, as above permitted, the notice shall so state, and shall state
that unless such deposit is made on or before such date the call for redemption
and the notice shall be of no effect.
Before any money shall be applied by the Trustee to the redemption of
bonds under this Section, the Company shall deliver to the Trustee a certificate
or opinion by the President or a Vice President of the Company and an opinion of
counsel, stating that all conditions precedent provided for herein (including
any covenants compliance with which constitutes a condition precedent) relating
to such redemption have been complied with.
SECTION 2.03. Redemptions Pursuant to Section 4C of Article Eight of
the Indenture. If, pursuant to Section 4C of Article Eight of the Indenture, as
amended and supplemented, any proceeds of released property or other money then
held by the Trustee shall be applied to the redemption of bonds of the Floating
Rate Series A, the Trustee, not later than 30 days prior to the applicable
redemption date, shall draw by lot according to such methods as it shall deem
proper, from all the bonds of the Floating Rate Series A then outstanding, such
principal amount thereof as is to be redeemed. Bonds of said series so redeemed
shall be cancelled.
After such drawing the Trustee shall, beginning not later than 30 nor
earlier than 40 days in advance of the date fixed for redemption, give, in the
name of the Company, notice by mail that bonds of the Floating Rate Series A
bearing the serial numbers specified have been called for redemption pursuant to
said Section 4C of Article Eight, that they will be due and payable on such
redemption date, at the office of the Trustee in Morristown, New Jersey, or (at
the option of the registered owner) at the office or agency of the Company in
the Borough of Manhattan, City
and State of New York, at a stated amount (which shall be the Special Redemption
Price (plus any accrued and unpaid interest to the redemption date), that, if
the date fixed for redemption be other than an Interest Payment Date, the bonds
will be payable at the Special Redemption Price, plus accrued interest to the
redemption date, and that all interest thereon will cease to accrue after said
date. Such notice shall be mailed to the several registered owners of the bonds
so called, at their respective addresses as the same may appear on the registry
books. Failure duly to give such notice of redemption to the registered owner of
any bond called for redemption in whole or in part shall not affect the validity
of the proceedings for the redemption of any other bond.
SECTION 2.04. Called Bonds to be Surrendered--Interest to Cease. Each
bond or portion thereof of the Floating Rate Series A so called under either
Sections 2.02 or 2.03 hereof shall be due and payable (upon surrender thereof)
at the places and price and on the date specified in such notice, anything
herein or in such bond to the contrary notwithstanding, except that if the call
of any bonds or portions thereof under Section 2.02 hereof shall have been
conditioned upon the deposit of the redemption price with the Trustee on or
before the redemption date specified in such notice, with accrued interest
thereon to the redemption date, such bonds or such portions thereof shall not be
due and payable on the specified redemption date unless such deposit shall have
been so made with the Trustee on or before such date. From and after the date
when each bond or portion thereof of the Floating Rate Series A shall be due and
payable as aforesaid (unless upon said date the full amount due thereon shall
not be held by the Trustee 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 2.05. Bonds Called in Part. If only a portion of any bond of
the Floating Rate Series A shall be drawn by lot by the Trustee pursuant to
Sections 2.02 or 2.03 hereof, the notice of redemption hereinbefore provided for
shall specify the serial number of such bond and the portion of the principal
amount thereof to be redeemed. Upon surrender of such bond for partial
redemption and upon payment of the portion so called for redemption, a new bond
or bonds of the Floating Rate Series A, in aggregate principal amount equal to
the unredeemed portion of such surrendered bond, shall be executed by the
Company, authenticated by or on behalf of the Trustee, and delivered to the
registered owner thereof, without expense to such owner.
SECTION 2.06. Provisions of Indenture Not Applicable. There shall be
no sinking fund for the bonds of Floating Rate Series A. 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 in this Article in respect of the bonds of the Floating Rate Series A.
ARTICLE III.
MISCELLANEOUS.
SECTION 3.01. Authentication of Bonds of Floating Rate Series A. None
of the bonds of the Floating Rate Series A the issue of which is provided for by
this supplemental indenture shall be authenticated by or on behalf of 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 3.02. Authenticating Agent. As long as any of the bonds of the
Floating Rate Series A remain outstanding, the Trustee may appoint an
authenticating agent to act on its behalf and subject to its direction in
connection with the authentication of bonds of the Floating Rate Series A. Such
authenticating agent shall be appointed by the Trustee by an instrument in
writing and shall have no responsibility or liability for any action taken by it
at the direction of the Trustee. Such authenticating agent shall at all times be
a corporation organized and doing business under the laws of the United States
or of any State or Territory or of the District of Columbia authorized under
such laws to act as authenticating agent, having a combined capital and surplus
of at least $5,000,000, subject supervision or examination by Federal, State,
Territorial, or District of Columbia authority and, if there be such a
corporation willing and able to act as authenticating agent on reasonable and
customary terms, having its principal office and place of business in The City
of New York. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 3.02 the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate agency business
of any
authenticating agent, shall continue to be the authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the authenticating agent.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any authenticating agent by giving written notice
of termination to such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any authenticating agent shall cease to be eligible in accordance with the
provisions of this Section 3.02, the Trustee may appoint a successor
authenticating agent. The Trustee shall give written notice of such appointment
to the Company and shall mail notice of such appointment to all registered
owners of the bonds of the Floating Rate Series A, at their respective addresses
as the same may appear on the registry books. Any successor authenticating
agent, upon acceptance of its appointment, shall become vested with all the
rights, powers, duties and responsibilities of its predecessor, with like effect
as if originally appointed authenticating agent. No successor authenticating
agent shall be appointed unless eligible under the provisions of this Section
3.02.
The Trustee agrees to pay to the authenticating agent from time to
time reasonable compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payments as provided in the Indenture.
SECTION 3.03. Additional Restrictions on Authentication of Additional
Bonds Under Indenture. The Company covenants that from and after the date of
execution of this supplemental indenture, no additional bonds (as defined in
Section 1 of Article Two of the Indenture) shall be authenticated and delivered
by the Trustee under Subdivision A of Section 4 of said Article Two on account
of additions or improvements to the mortgaged property:
(1) unless the net earnings of the Company for the period required by
Subdivision C of Section 6 of said Article Two shall have been at
least twice the fixed charges (in lieu of 1-3/4 times such fixed
charges, as required by said Subdivision C); and for the purpose
of this condition (a) such fixed charges shall in each case
include interest on the bonds applied for, notwithstanding the
parenthetical provision contained in clause (4) of said
Subdivision C, and (b) in computing such net earnings there shall
be included in expenses of operation (under paragraph (c) of said
Subdivision C) all charges against earnings for depreciation,
renewals or replacements, and all certificates with respect to
net earnings delivered to the Trustee in connection with any
authentication of additional bonds under said Article Two shall
so state; and
(2) except to the extent of 60% (in lieu of 75% as permitted by
Subdivision A of Section 7 of said Article Two) of the cost or
fair value to the Company of the additions or improvements
forming the basis for such authentication of additional bonds.
SECTION 3.04. 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 3.05. 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 Floating Rate Series A may be facsimiles.
SECTION 3.06. Time for Making of Payment. All payments of principal or
redemption price of, or interest on the bonds of the Floating Rate Series A
shall be made either prior to the due date thereof or on the due date thereof in
immediately available funds. If any Interest Payment Date (other than a stated
maturity or redemption date) would otherwise be a day that is not a Business
Day, such Interest Payment Date shall be postponed to the next succeeding day
that is a Business Day. If the stated maturity or redemption date of this Bond
would otherwise be a day that is not a Business Day, such stated maturity or
redemption date, as the case may be, will be the next succeeding day that is a
Business Day, and no additional interest shall accrue as a result of such
delayed payment.
SECTION 3.07. 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 Floating Rate
Series A shall remain outstanding.
SECTION 3.08. 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 Floating Rate Series A shall not be construed as approval of
said Board of any other act, matter or thing which requires approval of said
Board under the laws of the State of New Jersey.
SECTION 3.09. Execution in Counterparts. For the purpose of
facilitating the recording hereof, this supplemental indenture has been executed
in several counterparts, each of which shall be and shall be taken to be an
original, and all collectively but one instrument.
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 Wachovia Bank, National Association, as Trustee, party hereto of
the second part, has caused this supplemental indenture to be signed and
acknowledged or proved by one of its Vice Presidents and its corporate seal to
be hereunto affixed and to be attested by the signature of one of its Vice
Presidents. Executed and delivered this 21st day of June 2004.
PUBLIC SERVICE ELECTRIC AND GAS
COMPANY
By /s/ M. A. Plawner
-------------------------------------
M. A. Plawner
Vice President
Attest:
/s/ Meg Butler
- -------------------------------------
Meg Butler
Assistant Secretary
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ F. Gallagher
-------------------------------------
F. Gallagher
Vice President
Attest:
/s/ R. Barnes
- -------------------------------------
R. Barnes
Vice President
STATE OF NEW JERSEY
ss.:
COUNTY OF ESSEX
BE IT REMEMBERED, that on this 21st day of June 2004, before me, the
subscriber, a Notary Public of the State of New Jersey, personally appeared M.A.
Plawner 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.
/s/ Jacquelyn E. Coyle
----------------------------------------
JACQUELYN E. COYLE
Notary Public of New Jersey
My Commission Expires July 22, 2007
STATE OF NEW JERSEY
ss.:
COUNTY OF ESSEX
BE IT REMEMBERED, that on this 21st day of June 2004, 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 WACHOVIA 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.
/s/ Jacquelyn E. Coyle
----------------------------------------
JACQUELYN E. COYLE
Notary Public of New Jersey
My Commission Expires July 22, 2007
CERTIFICATE OF RESIDENCE
Wachovia Bank, National Association, Mortgagee and Trustee within
named, hereby certifies that its precise residence is 21 South Street,
Morristown, New Jersey 07960.
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ F. Gallagher
-------------------------------------
F. Gallagher
Vice President