As filed with the Securities and Exchange Commission on November 12, 1998
Registration No. 333-65261
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
AMENDMENT NO. 1 TO REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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Public Service Enterprise
Group Incorporated
(Exact name of registrant as specified in charter)
New Jersey 22-2625848
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
80 Park Plaza
P.O. Box 1171
Newark, New Jersey 07101
(973) 430-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Robert C. Murray
Vice President and Chief Financial Officer
80 Park Plaza
P.O. Box 1171
Newark, New Jersey 07101
(973) 430-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
with copies to:
<TABLE>
<S> <C>
James T. Foran, Esquire Howard G. Godwin, Jr., Esquire
Associate General Counsel Brown & Wood LLP
80 Park Plaza One World Trade Center
P.O. Box 1171 New York, New York 10048
Newark, New Jersey 07101
</TABLE>
Approximate date of commencement of proposed sale to the public:
After the Registration Statement becomes effective, as determined by market
conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
prospectus included in this registration statement also relates to $200,000,000
aggregate principal amount of Senior Debt Securities and Subordinated Debt
Securities registered on Form S-3, File No. 333-52847 previously filed by the
registrant and declared effective on May 22, 1998 which have not been offered
or sold as of the date of this registration statement. This amendment also
constitutes post-effective amendment no. 2 to registration statement 333-52847,
and such post-effective amendment no. 2 shall hereafter become effective
concurrently with the effectiveness of this registration statement and in
accordance with section 8(c) of the Securities Act of 1933.
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The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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(A redherring appears on the left hand side of this page, rotated 90 degrees.
Text follows.)
Information contained herein is subject to completion or amendment. A
registration statement relating to securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall
there be any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such state.
Subject to Completion, Dated November 12, 1998
PROSPECTUS
Public Service Enterprise Group Incorporated
80 Park Plaza
P.O. Box 1170
Newark, New Jersey 07101-1170
(973) 430-7000
(PSEG LOGO)
$350,000,000
Debt Securities
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Public Service Enterprise Group Incorporated may offer from time to time,
together or separately, one or more series of its unsecured debt securities
which may be either senior or subordinated in priority of payment.
The Senior Debt Securities will rank equally with all other unsubordinated
and unsecured indebtedness of Enterprise. The Subordinated Debt Securities will
be unsecured and subordinated as described under "Description of Debt
Securities -- Subordination."
When a particular series of Debt Securities is offered, Enterprise will
prepare and issue a supplement to this Prospectus setting forth the particular
terms of the offered Debt Securities. You should read this Prospectus and any
Prospectus Supplement carefully before you make any decision to invest in the
Debt Securities.
The aggregate initial public offering price of all Senior Debt Securities
and Subordinated Debt Securities which may be sold under this Prospectus will
not exceed $350,000,000.
---------------
These securities have not been approved or disapproved by the Securities
and Exchange Commission or any state securities commission nor has any of these
organizations determined that this prospectus is accurate or complete. Any
representation to the contrary is a criminal offense.
---------------
The date of this Prospectus is , 1998.
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About This Prospectus
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This prospectus is part of a registration statement that Public Service
Enterprise Group Incorporated ("Enterprise") filed with the Securities and
Exchange Commission (the "SEC") utilizing a "shelf " registration process.
Under this shelf process, Enterprise may, from time to time, sell any
combination of the Debt Securities described in this Prospectus in one or more
offerings of one or more series. The aggregate principal amount of Debt
Securities which Enterprise may offer under this Prospectus is $350,000,000.
Each time Enterprise sells Debt Securities, it will provide a Prospectus
Supplement that will contain specific information about the terms of that
offering. The Prospectus Supplement may also add, update or change information
contained in this Prospectus. You should read both this Prospectus and any
Prospectus Supplement together with additional information described under the
heading WHERE YOU CAN FIND MORE INFORMATION.
Enterprise believes that it has included or incorporated by reference
all information material to investors in this Prospectus, but certain details
that may be important for specific investment purposes have not been included.
To see more detail, you should read the exhibits filed with or incorporated by
reference into this registration statement.
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Where You Can Find More Information
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Enterprise is a New Jersey corporation which files annual, quarterly and
special reports, proxy statements and other information with the SEC.
Enterprise's SEC filings are available to the public over the Internet at the
SEC's web site at http://www.sec.gov. You may also read and copy any document
Enterprise files at the SEC's Public Reference Room at 450 Fifth Street, N.W.,
Washington, D.C. 20549, as well as its public reference rooms in New York, New
York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms.
You may also inspect these documents at the New York Stock Exchange,
Inc. and the Philadelphia Stock Exchange, Inc. where Enterprise's common stock
is listed.
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Incorporation of Certain Documents by Reference
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The SEC allows Enterprise to "incorporate by reference" the information
Enterprise files with it, which means that Enterprise can disclose important
information to you by referring you to those documents. The information
incorporated by reference is an important part of this Prospectus, and
information that Enterprise files later with the SEC will automatically update
and supersede this information. Enterprise incorporates by reference the
documents listed below and any future filings made with the SEC under Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until it
sells all of the Debt Securities.
1. Enterprise's Annual Report on Form 10-K for the year ended December
31, 1997.
2. Enterprise's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
You may request a copy of these filings, other than exhibits not
specifically incorporated by reference therein, which will be provided to you
without charge, by writing or telephoning:
Director, Investor Relations
Public Service Electric and Gas Company
80 Park Plaza, T6B
P.O. Box 570
Newark, New Jersey 07101
telephone (973) 430-6503
You should rely only on the information incorporated by reference or
provided in this Prospectus or any Prospectus Supplement. Enterprise has not
authorized anyone else to provide you with different information. Enterprise is
not making an offer of these Debt Securities in any state where the offer is
not permitted. You should not assume that the information in this Prospectus or
any Prospectus Supplement is accurate as of any date other than the date on the
front of those documents.
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Public Service Enterprise Group Incorporated
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Enterprise is a public utility holding company that neither owns nor
operates any physical properties. Enterprise has two direct, wholly owned
subsidiaries, Public Service Electric and Gas Company ("PSE&G") and PSEG Energy
Holdings Inc. ("Energy Holdings"). Enterprise's principal subsidiary, PSE&G, is
an operating public utility providing electric and gas service in certain areas
of the State of New Jersey. Energy Holdings is the parent of Enterprise's
non-utility businesses: PSEG Global Inc.,
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PSEG Resources Inc., PSEG Energy Technologies Inc., Enterprise Group
Development Corporation, PSEG Capital Corporation and Enterprise Capital
Funding Corporation.
Enterprise's executive offices are located at 80 Park Plaza, Newark, New
Jersey 07101, and its telephone number is (973) 430-7000.
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Use of Proceeds
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The net proceeds from the sale of the Debt Securities will be added to
Enterprise's general funds and will be used for general corporate purposes
including, but not limited to, the repurchase of shares of its common stock and
making additional investments in its subsidiaries.
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Description of Debt Securities
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The Debt Securities will be Enterprise's direct unsecured obligations
and may be issued from time to time in one or more offerings of one or more
series. The Senior Securities will be issued under an Indenture (the "Senior
Indenture") to be entered into between Enterprise and First Union National
Bank, Trustee (the "Senior Trustee"), and the Subordinated Securities will be
issued under an Indenture (the "Subordinated Indenture") to be entered into
between Enterprise and First Union National Bank, Trustee (the "Subordinated
Trustee"). The term "Trustee" when used in this Prospectus refers to either the
Senior Trustee or the Subordinated Trustee, as appropriate. The Senior
Indenture and the Subordinated Indenture (sometimes referred to collectively as
the "Indentures" and individually as an "Indenture") are filed as exhibits to
the registration statement. The Indentures are subject to and governed by the
Trust Indenture Act of 1939, as amended (the "TIA"). Selected provisions of the
Indentures have been summarized below. The summary is not complete. You should
read the Indentures for provisions that may be important to you. In the summary
below, references to section numbers of the applicable Indentures are included
so that you can easily locate these provisions. Capitalized terms used in the
summary have the meanings specified in the Indentures. Parenthetical references
below are to the Indentures or to the TIA, as applicable.
Provisions Applicable to Both the Senior and Subordinated Indentures
General
The Debt Securities will be direct, unsecured obligations of Enterprise.
The Senior Securities will rank equally with all other unsecured and
unsubordinated
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indebtedness of Enterprise. The Subordinated Securities will be subordinated in
right of payment to the prior payment in full of the Senior Indebtedness of
Enterprise as described under " -- Subordinated Indenture Provisions --
Subordination."
Because Enterprise is a holding company that conducts all of its
operations through its subsidiaries, holders of Debt Securities will generally
have a junior position to claims of creditors of those subsidiaries, including
trade creditors, debtholders, secured creditors, taxing authorities, guarantee
holders and any preferred stockholders. PSE&G has 2,145,234 outstanding shares
of preferred stock with an aggregate par value of approximately $170 million.
Enterprise's subsidiaries have ongoing corporate debt programs used to finance
their business activities. As of September 30, 1998, Enterprise's subsidiaries
had approximately $6.7 billion of outstanding debt.
Each Indenture provides that any Debt Securities proposed to be sold
pursuant to this Prospectus and the accompanying Prospectus Supplement, as well
as other unsecured debt securities of Enterprise, may be issued under such
Indenture in one or more series, in each case as authorized from time to time
by Enterprise. The particular terms of any series of Debt Securities and any
modifications of or additions to the general terms of the Debt Securities
described in this Prospectus will be described in the Prospectus Supplement for
that series. Accordingly, for a description of the terms of any series of Debt
Securities, you should refer to both the Prospectus Supplement relating to that
series and the description of Debt Securities set forth in this Prospectus.
You should refer to the Prospectus Supplement for the following
information for each particular series of Debt Securities:
(1) The title of such Debt Securities and whether such Debt
Securities will be Senior Debt Securities or Subordinated Debt
Securities.
(2) The aggregate principal amount of such Debt Securities and any
limit on the aggregate principal amount of Debt Securities of such
series.
(3) If other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of
the maturity thereof or the method by which such portion will be
determined.
(4) The date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of such Debt
Securities will be payable.
(5) The rate or rates at which such Debt Securities will bear
interest, if any, or the method by which such rate or rates will be
determined. The terms of any remarketing of such Debt Securities. The
date or dates from which such interest will accrue or the method by
which such date or dates will be determined. The date or dates on which
such interest, if any, will be payable and the Regular Record Date or
Dates, if any, for the interest payable on any such Debt Securities on
any Interest Payment Date, or the method by which any such date will be
determined, and the basis upon which interest will be calculated if
other than that of a 360-day year of twelve 30-day months.
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(6) The date or dates on which or the period or periods within
which, the price or prices at which and the other terms and conditions
upon which, such Debt Securities may be redeemed, in whole or in part,
at the option of Enterprise and whether Enterprise is to have that
option.
(7) The obligation, if any, of Enterprise to redeem, repay or
purchase such Debt Securities, in whole or in part, pursuant to any
sinking fund or similar provision or at the option of a holder thereof
and the period or periods within which or the date or dates on which,
the price or prices at which and the other terms and conditions upon
which, such Debt Securities will be so redeemed, repaid or purchased.
(8) Whether such Debt Securities are to be issuable as Registered
Securities, Bearer Securities or both. Any restrictions applicable to
the offer, sale or delivery of Bearer Securities and the terms, if any,
upon which Bearer Securities of the series may be exchanged for
Registered Securities. Whether such Debt Securities will be issuable
initially in temporary global form. Whether any such Debt Securities
will be issuable in permanent global form with or without coupons and,
if so, whether beneficial owners of interests in any such permanent
global security may exchange such interests for Debt Securities of such
series in certificate form and the circumstances under which any such
exchanges may occur, if other than in the manner provided in the
applicable Indenture. If Registered Securities are to be issuable as a
global security, the identity of the depository for such Debt
Securities.
(9) Whether the amount of payments of principal of (or premium, if
any) or interest, if any, on such Debt Securities may be determined
with reference to an index, formula or other method (which index,
formula or method may be based on one or more Currencies, commodities,
equity indices or other indices) and the manner in which such amounts
will be determined.
(10) The place or places, if any, other than or in addition to The
City of New York, where the principal of (and premium, if any) and
interest, if any, on such Debt Securities will be payable. Where any
Registered Securities may be surrendered for registration of transfer
or exchange. Where Debt Securities of a series that are convertible or
exchangeable may be surrendered for conversion or exchange and where
notices or demands to or upon Enterprise in respect of such Debt
Securities and the applicable Indenture may be served.
(11) The denomination or denominations in which such Debt
Securities will be issuable, if other than $1,000 or any integral
multiple thereof in the case of Registered Securities and $5,000 in the
case of Bearer Securities.
(12) If other than the applicable Trustee, the identity of each
Security Registrar and/or Paying Agent.
(13) The date as of which any Bearer Securities of the series and
any temporary Debt Security issued in global form representing
Outstanding Securities of the series will be dated if other than the
date of original issuance of the first Debt Security of the series to
be issued.
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(14) The applicability, if at all, to such Debt Securities of the
provisions of Article Fourteen of the applicable Indenture described
under "Defeasance and Covenant Defeasance" and any provisions in
modification of, in addition to or in lieu of any of the provisions of
such Article.
(15) The Person to whom any interest on any Registered Security of
the series will be payable, if other than the Person in whose name such
Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. The manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature. The extent to which, or the manner in which, any
interest payable on a temporary Debt Security issued in global form
will be paid if other than in the manner provided in the applicable
Indenture.
(16) If such Debt Securities are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Debt
Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions.
(17) Whether and under what circumstances Enterprise will pay
Additional Amounts, as contemplated by Section 1004 of the applicable
Indenture, on such Debt Securities to any holder who is not a United
States person (including any modification to the definition of such
term as contained in the applicable Indenture as originally executed)
in respect of any tax, assessment or governmental charge and, if so,
whether Enterprise will have the option to redeem such Debt Securities
rather than pay such Additional Amounts (and the terms of any such
option).
(18) The provisions, if any, granting special rights to the holders
of such Debt Securities upon the occurrence of such events as may be
specified.
(19) Any deletions from, modifications of or additions to the
Events of Default or covenants of Enterprise with respect to such Debt
Securities (which Events of Default or covenants are consistent with
the Events of Default or covenants set forth in the general provisions
of the applicable Indenture).
(20) Whether such Debt Securities will be convertible into or
exchangeable for any other securities and, if so, the terms and
conditions upon which such Debt Securities will be so convertible or
exchangeable.
(21) Any other terms of such Debt Securities.
If applicable, the Prospectus Supplement will also include a discussion
of Federal income tax considerations relevant to the Debt Securities being
offered.
For purposes of this Prospectus, any reference to the payment of
principal of (or premium, if any) or interest, if any, on such Debt Securities
will be deemed to include mention of the payment of any Additional Amounts
required by the terms of such Debt Securities.
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Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Federal income tax and other
considerations pertaining to any such Original Issue Discount Securities will
be discussed in the applicable Prospectus Supplement.
Each Indenture provides that the Debt Securities which are the subject
of this Prospectus and additional unsecured debt securities of Enterprise,
unlimited as to aggregate principal amount, may be issued in one or more series
thereunder, in each case as authorized from time to time by or pursuant to
authority granted by the Board of Directors of Enterprise. (Section 301 of each
Indenture) Debt Securities so issued under an Indenture are herein collectively
referred to, when a single Trustee is acting for all debt securities issued
under such Indenture, as the "Indenture Securities". Each Indenture also
provides that there may be more than one Trustee thereunder, each with respect
to one or more different series of Indenture Securities. See also "Resignation
of Trustee" herein. At a time when two or more Trustees are acting under either
Indenture, each with respect to only certain series, the term "Indenture
Securities", as used herein, will mean the one or more series with respect to
which each respective Trustee is acting. In the event that there is more than
one Trustee under either Indenture, the powers and trust obligations of each
Trustee as described herein will extend only to the one or more series of
Indenture Securities for which it is Trustee. If two or more Trustees are
acting under either Indenture, then the Indenture Securities for which each
Trustee is acting would in effect be treated as if issued under separate
indentures.
The general provisions of the Indentures do not contain any provisions
that would limit the ability of Enterprise to incur indebtedness or that would
afford holders of Debt Securities protection in the event of a highly leveraged
or similar transaction involving Enterprise. You should refer to the Prospectus
Supplement for information with respect to any deletions from, modifications of
or additions to the Events of Default or covenants of Enterprise that are
described below, including any addition of a covenant or other provision
providing event risk or similar protection.
Enterprise has the ability to issue Indenture Securities with terms
different from those of Indenture Securities previously issued and, without the
consent of the holders thereof, to reopen a previous issue of a series of
Indenture Securities and issue additional Indenture Securities of such series
(unless such reopening was restricted when such series was created).
Denominations, Registration and Transfer
Debt Securities of a series may be issuable solely as Registered
Securities, solely as Bearer Securities or as both Registered Securities and
Bearer Securities. The Indentures also provide that Debt Securities of a series
may be issuable in global form. See " -- Book-Entry Debt Securities". Unless
otherwise provided in the Prospectus Supplement, Debt Securities denominated in
U.S. dollars (other than Global Securities, which may be of any denomination)
are issuable in denominations of $1,000 or any integral multiples of $1,000 (in
the case of Registered Securities) and in the denomination of $5,000 (in the
case of Bearer Securities). Unless otherwise indicated
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in the Prospectus Supplement, Bearer Securities will have interest coupons
attached. (Section 201 of each Indenture)
Registered Securities will be exchangeable for other Registered
Securities of the same series. If (but only if) provided in the Prospectus
Supplement, Bearer Securities (with all unmatured coupons, except as provided
below, and all matured coupons which are in default) of any series may be
similarly exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor. If
so provided, Bearer Securities surrendered in exchange for Registered
Securities between a Regular Record Date or a Special Record Date and the
relevant date for payment of interest will be surrendered without the coupon
relating to such date for payment of interest, and interest will not be payable
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the holder of such coupon when due in
accordance with the terms of the applicable Indenture. Unless otherwise
specified in the Prospectus Supplement, Bearer Securities will not be issued in
exchange for Registered Securities. (Section 305 of each Indenture)
Registered Securities of a series may be presented for registration of
transfer and Debt Securities of a series may be presented for exchange (i) at
each office or agency required to be maintained by Enterprise for payment of
such series as described in "Payment and Paying Agents", and (ii) at each other
office or agency that Enterprise may designate from time to time for such
purposes. No service charge will be made for any transfer or exchange of Debt
Securities, but Enterprise may require payment of any tax or other governmental
charge payable in connection therewith. (Section 305 of each Indenture)
Enterprise will not be required to (i) issue, register the transfer of
or exchange Debt Securities during a period beginning at the opening of
business 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (A) if Debt Securities of the
series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption and (B) if Debt Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption, or, if Debt Securities of the series are also issuable as
Registered Securities and there is no publication, the day of mailing of the
relevant notice of redemption; (ii) register the transfer of or exchange any
Registered Security, or portion thereof, called for redemption, except the
unredeemed portion of any Registered Security being redeemed in part; (iii)
exchange any Bearer Security called for redemption, except to exchange such
Bearer Security for a Registered Security of that series and like tenor that is
simultaneously surrendered for redemption; or (iv) issue, register the transfer
of or exchange any Debt Security which has been surrendered for repayment at
the option of the holder, except the portion, if any, of such Debt Security not
to be so repaid. (Section 305 of each Indenture)
Payment and Paying Agents
Unless otherwise provided in the Prospectus Supplement, premium, if any,
and interest, if any, and Additional Amounts, if any, on Registered Securities
will be payable at any office or agency to be maintained by Enterprise in
Newark, New Jersey
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and New York, New York, except that at the option of Enterprise interest
(including Additional Amounts, if any) may be paid (i) by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto as specified in the Security Register. (Sections 301,
1001 and 1002 of each Indenture) Unless otherwise provided in the Prospectus
Supplement, payment of any installment of interest on Registered Securities
will be made to the Person in whose name such Registered Security is registered
at the close of business on the Regular Record Date for such interest. (Section
307 of each Indenture)
If Debt Securities of a series are issuable solely as Bearer Securities
or as both Registered Securities and Bearer Securities, unless otherwise
provided in the Prospectus Supplement, Enterprise will be required to maintain
an office or agency (i) outside the United States at which, subject to any
applicable laws and regulations, the principal of (and premium, if any) and
interest, if any, on such series will be payable and (ii) in The City of New
York for payments with respect to any Registered Securities of such series (and
for payments with respect to Bearer Securities of such series in the limited
circumstances described below, but not otherwise); provided that, if required
in connection with any listing of such Debt Securities on the Luxembourg Stock
Exchange or any other stock exchange located outside the United States,
Enterprise will maintain an office or agency for such Debt Securities in any
city located outside the United States required by such stock exchange.
(Section 1002 of each Indenture) The initial locations of such offices and
agencies will be specified in the Prospectus Supplement. Unless otherwise
provided in the Prospectus Supplement, principal of (and premium, if any) and
interest, if any, on Bearer Securities may be paid by wire transfer to an
account maintained by the Person entitled thereto with a bank located outside
the United States. (Sections 307 and 1002 of each Indenture) Unless otherwise
provided in the Prospectus Supplement, payment of installments of interest on
any Bearer Securities on or before Maturity will be made only against surrender
of coupons for such interest installments as they severally mature. (Section
1001 of each Indenture) Unless otherwise provided in the Prospectus Supplement,
no payment with respect to any Bearer Security will be made at any office or
agency of Enterprise in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a bank located
in the United States. Notwithstanding the foregoing, payments of principal of
(and premium, if any) and interest, if any, on Bearer Securities payable in
U.S. dollars will be made at the office of Enterprise's Paying Agent in The
City of New York if (but only if) payment of the full amount thereof in U.S.
dollars at all offices or agencies outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions.
(Section 1002 of each Indenture)
Enterprise may from time to time designate additional offices or
agencies, approve a change in the location of any office or agency and, except
as provided above, rescind the designation of any office or agency.
Events of Default
The following will constitute Events of Default under each Indenture, or
of any coupon upon or any Additional Amounts payable in respect of any Debt
Security
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of that series or of any coupon appertaining thereto, (i) default in the
payment of the principal of (or premium, if any, on) any Debt Security of that
series when the same becomes due and payable, whether at its maturity, earlier
redemption or repayment or otherwise and continuance of such default for a
period of 30 days; (ii) default in the deposit of any sinking fund payment when
due by the terms of any Debt Security of that series; (iii) default in the
performance, or breach, of any covenant or agreement of Enterprise in the
applicable Indenture with respect to any Debt Security of that series,
continued for 60 days after written notice to Enterprise; (iv) certain events
in bankruptcy, insolvency or reorganization affecting Enterprise; and (v) any
other Event of Default provided with respect to Debt Securities of that series.
(Section 501 of each Indenture) Enterprise is required to file with the
applicable Trustee, annually, an officer's certificate as to Enterprise's
compliance with all conditions and covenants under the applicable Indenture.
(Section 1005 of each Indenture) Each Indenture provides that the applicable
Trustee may withhold notice to the holders of Debt Securities of a series of
any default (except payment defaults on such Debt Securities of that series) if
it considers it in the interest of the holders of Debt Securities of such
series to do so. (Section 601 of each Indenture)
If an Event of Default with respect to Debt Securities of a series has
occurred and is continuing, the applicable Trustee or the holders of not less
than 25% in principal amount of Outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms thereof) of all of the Debt
Securities of that series due and payable immediately. (Section 502 of each
Indenture)
Subject to the provisions of the applicable Indenture relating to the
duties of the Trustee thereunder, in case an Event of Default with respect to
Debt Securities of a series has occurred and is continuing, such Trustee is
under no obligation to exercise any of its rights or powers under such
Indenture at the request, order or direction of the holders of Debt Securities
of that series, unless such holders have offered such Trustee reasonable
indemnity against the expenses and liabilities which might be incurred by it in
compliance with such request. (Section 507 of each Indenture and TIA Section
315) Subject to such provisions for the indemnification of the applicable
Trustee, the holders of a majority in principal amount of the Outstanding Debt
Securities of a series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to such Trustee, or
exercising any trust or power conferred on such Trustee with respect to the
Debt Securities of that series. (Section 512 of each Indenture)
The holders of a majority in principal amount of the Outstanding Debt
Securities of a series may, on behalf of the holders of all Debt Securities of
such series and any related coupons, waive any past default under the
applicable Indenture with respect to such series and its consequences, except a
default (i) in the payment of the principal of (or premium, if any) or
interest, if any, on or Additional Amounts payable in respect of any Debt
Security of such series or any related coupons or (ii) in respect of a covenant
or provision that cannot be modified or amended without the consent of the
holder of each Outstanding Debt Security of such series affected thereby.
(Section 513 of each Indenture)
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Merger or Consolidation
Each Indenture provides that Enterprise may not consolidate with or
merge with or into any other corporation or convey or transfer its properties
and assets as an entirety or substantially as an entirety to any Person, unless
either Enterprise is the continuing corporation or such corporation or Person
assumes by supplemental indenture all the obligations of Enterprise under such
Indenture and the Indenture Securities issued thereunder and immediately after
the transaction no default shall exist. In addition, under the Indentures, no
such consolidation, merger or transfer may be made if as a result thereof any
property or assets of Enterprise would become subject to any mortgage, lien or
other encumbrance unless such Indenture Securities are secured equally and
ratably with or prior to the debt secured by such mortgage, lien or other
encumbrance. (Section 801 of each Indenture)
Modification or Waiver
Modification and amendment of an Indenture may be made by Enterprise and
the Trustee thereunder with the consent of the holders of a majority in
principal amount of all Outstanding Indenture Securities issued thereunder that
are affected by such modification or amendment; provided that no such
modification or amendment may, without the consent of the holder of each
Outstanding Indenture Security affected thereby, among other things: (i) change
the Stated Maturity of the principal of (or premium, if any, on) or any
installment of principal of or interest on any such Indenture Security; (ii)
reduce the principal amount of, or the rate or amount of interest in respect
of, or any premium payable upon the redemption of, any such Indenture Security;
(iii) change any obligation of Enterprise to pay Additional Amounts in respect
of any such Indenture Security; (iv) reduce the portion of the principal of an
Original Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof or provable
in bankruptcy; (v) adversely affect any right of repayment at the option of the
holder of any such Indenture Security; (vi) change the place or Currency of
payment of principal of, or any premium or interest on, any such Indenture
Security; (vii) impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof or on or after any
Redemption Date or Repayment Date therefor; (viii) adversely affect any right
to convert or exchange any Indenture Security; (ix) reduce the percentage in
principal amount of such Outstanding Indenture Securities, the consent of whose
holders is required to amend or waive compliance with certain provisions of
such Indenture or to waive certain defaults thereunder; (x) reduce the
requirements for voting or quorum described below; or (xi) modify any of the
foregoing requirements or any of the provisions relating to waiving past
defaults or compliance with certain restrictive provisions, except to increase
the percentage of holders required to effect any such waiver or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the holder of each Indenture Security affected thereby. (Section
902 of each Indenture)
In addition, under the Subordinated Indenture, no modification or
amendment thereof may, without the consent of the holder of each Outstanding
Subordinated Security affected thereby, modify any of the provisions of such
Indenture relating to the subordination of the Subordinated Securities in a
manner adverse to the holders
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thereof and no such modification or amendment may adversely affect the rights
of any holder of Senior Indebtedness under Article Sixteen of the Subordinated
Indenture (described under the caption " -- Subordinated Indenture Provisions
- -- Subordination") without the consent of such holder of Senior Indebtedness.
(Sections 902 and 907 of the Subordinated Indenture)
The holders of a majority in aggregate principal amount of Outstanding
Indenture Securities have the right to waive compliance by Enterprise with
certain covenants in the applicable Indenture. (Section 1006 of each Indenture)
Modification and amendment of an Indenture may be made by Enterprise and
the applicable Trustee thereunder, without the consent of any holder, for any
of the following purposes: (i) to evidence the succession of another Person to
Enterprise as obligor under such Indenture; (ii) to add to the covenants of
Enterprise for the benefit of the holders of all or any series of Indenture
Securities issued under such Indenture and any related coupons or to surrender
any right or power conferred upon Enterprise by such Indenture; (iii) to add
Events of Default for the benefit of the holders of all or any series of
Indenture Securities; (iv) to add to or change any provisions of such Indenture
to facilitate the issuance of, or to liberalize the terms of, Bearer
Securities, or to permit or facilitate the issuance of Indenture Securities in
uncertificated form, provided that any such actions do not adversely affect the
holders of such Indenture Securities or any related coupons; (v) to change or
eliminate any provisions of such Indenture, provided that any such change or
elimination will become effective only when there are no such Indenture
Securities Outstanding of any series created prior thereto which are entitled
to the benefit of such provisions; (vi) to secure the Indenture Securities
under the applicable Indenture pursuant to the requirements of Section 801 of
such Indenture, or otherwise; (vii) to establish the form or terms of such
Indenture Securities of any series and any related coupons; (viii) to provide
for the acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under such Indenture by more than one Trustee;
(ix) to cure any ambiguity, defect or inconsistency in such Indenture, provided
such action does not adversely affect the interests of holders of Indenture
Securities of a series issued thereunder or any related coupons in any material
respect; or (x) to supplement any of the provisions of such Indenture to the
extent necessary to permit or facilitate defeasance and discharge of any series
of Indenture Securities thereunder, provided that such action shall not
adversely affect the interests of the holders of any such Indenture Securities
and any related coupons in any material respect. (Section 901 of each
Indenture)
In determining whether the holders of the requisite principal amount of
Outstanding Indenture Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the applicable Indenture or whether
a quorum is present at a meeting of holders of Indenture Securities thereunder,
(i) the principal amount of an Original Issue Discount Security that will be
deemed to be outstanding will be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of
the Maturity thereof, (ii) the principal amount of an Indexed Security that may
be counted in making such determination or calculation and that will be deemed
outstanding for such purpose will be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect
to such Indexed Security pursuant to Section 301 of such Indenture and (iii)
Indenture Securities owned by Enterprise or any other
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obligor upon the Indenture Securities or any Affiliate of Enterprise or of such
other obligor shall be disregarded. (Section 101 of each Indenture)
Each Indenture contains provisions for convening meetings of the holders
of Indenture Securities of a series if Indenture Securities of that series are
issuable as Bearer Securities. (Section 1501 of each Indenture) A meeting may
be called at any time by the applicable Trustee, and also, upon request, by
Enterprise or the holders of at least 10% in principal amount of the
Outstanding Indenture Securities of that series, in any such case upon notice
given as provided in the applicable Indenture. (Section 1502 of each Indenture)
Except for any consent that must be given by the holder of each Indenture
Security affected thereby, as described above, any resolution presented at a
meeting (or an adjourned meeting duly reconvened) at which a quorum is present
may be adopted by the affirmative vote of the holders of a majority in
principal amount of the Outstanding Indenture Securities of that series;
provided, however, that any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that may be
made, given or taken by the holders of a specified percentage which is less
than a majority in principal amount of the Outstanding Indenture Securities of
a series may be adopted at a meeting (or an adjourned meeting duly reconvened)
at which a quorum is present by the affirmative vote of the holders of such
specified percentage in principal amount of the Outstanding Indenture
Securities of that series. Any resolution passed or decision taken at any
meeting of holders of Indenture Securities of a series duly held in accordance
with the applicable Indenture will be binding on all holders of Indenture
Securities of that series and any related coupons. The quorum at any meeting
called to adopt a resolution will be persons holding or representing a majority
in principal amount of the Outstanding Indenture Securities of a series;
provided, however, that, if any action is to be taken at such meeting with
respect to a consent or waiver which may be given by the holders of not less
than a specified percentage in principal amount of the Outstanding Indenture
Securities of a series, the persons holding or representing such specified
percentage in principal amount of the Outstanding Indenture Securities of that
series will constitute a quorum. (Section 1504 of each Indenture)
Notwithstanding the foregoing provisions, if any action is to be taken
at a meeting of holders of Indenture Securities of a series with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that the applicable Indenture expressly provides may be made, given or
taken by the holders of a specified percentage in principal amount of all
Outstanding Indenture Securities affected thereby or of the holders of such
series and one or more additional series: (i) there shall be no minimum quorum
requirement for such meeting and (ii) the principal amount of the Outstanding
Indenture Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action will be taken
into account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under such Indenture. (Section 1504 of each Indenture)
Satisfaction and Discharge, Defeasance and Covenant Defeasance
Enterprise may discharge certain obligations to holders of Debt
Securities of a series that have not already been delivered to the applicable
Trustee for cancellation
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and that either have become due and payable or are by their terms due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the applicable Trustee, in trust, funds in an
amount sufficient to pay the entire indebtedness on such Debt Securities for
principal (and premium, if any) and interest, if any, and any Additional
Amounts with respect thereto, to the date of such deposit (if such Debt
Securities have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be. (Section 401 of each Indenture)
Each Indenture provides that, if the provisions of Article Fourteen are
made applicable to the Debt Securities of or within any series and any related
coupons pursuant to Section 301 thereunder, Enterprise may elect either (a) to
defease and be discharged from any and all obligations with respect to such
Debt Securities and any related coupons (except for the obligations to pay
Additional Amounts, if any, upon the occurrence of certain events of tax,
assessment or governmental charge with respect to payments on such Debt
Securities and the obligations to register the transfer or exchange of such
Debt Securities and any related coupons, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities and any related coupons, to maintain
an office or agency in respect of such Debt Securities and any related coupons,
and to hold moneys for payment in trust) ("defeasance") (Section 1402 of each
Indenture) or (b) to be released from its obligations under any covenant
specified pursuant to Section 301 with respect to such Debt Securities and any
related coupons, and any omission to comply with such obligations shall not
constitute a default or an Event of Default with respect to such Debt
Securities and any related coupons ("covenant defeasance") (Section 1403), in
either case upon the irrevocable deposit by Enterprise with the applicable
Trustee (or other qualifying trustee), in trust, of (i) an amount in U.S.
dollars, (ii) Government Obligations (as defined below) applicable to such Debt
Securities and coupons that through the payment of principal and interest in
accordance with their terms will provide money in an amount, or (iii) a
combination thereof in an amount, sufficient to pay the principal of (and
premium, if any) and interest, if any, on such Debt Securities and any related
coupons, and any mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor.
Such a trust may only be established if, among other things, Enterprise
has delivered to the applicable Trustee an Opinion of Counsel (as specified in
the applicable Indenture) to the effect that the holders of such Debt
Securities and any related coupons will not recognize income, gain or loss for
United States Federal income tax purposes as a result of such defeasance or
covenant defeasance and will be subject to United States Federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred, and such
Opinion of Counsel, in the case of defeasance under clause (a) above, must
refer to and be based upon a ruling of the Internal Revenue Service or a change
in applicable United States Federal income tax law occurring after the date of
the Indenture. (Section 1404 of each Indenture)
"Government Obligations" means securities which are (i) direct
obligations of the United States or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which are not callable or redeemable at the
option of the issuer thereof. "Government Obligations" also include a
depository receipt issued by a bank or trust company as
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custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
the amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt. (Section 101 of each Indenture)
In the event Enterprise effects covenant defeasance with respect to any
Debt Securities and any related coupons and such Debt Securities and coupons
are declared due and payable because of the occurrence of any Event of Default
other than the Event of Default described in clause (4) or (7) under "Events of
Default" (Section 501 of each Indenture) with respect to any covenant to which
there has been defeasance, the amount of Government Obligations and funds on
deposit with the applicable Trustee will be sufficient to pay amounts due on
such Debt Securities and coupons at the time of their Stated Maturity but may
not be sufficient to pay amounts due on such Debt Securities and coupons at the
time of the acceleration resulting from such Event of Default. In such case,
Enterprise would remain liable to make payment of such amounts due at the time
of acceleration. (Section 501 of each Indenture)
If the applicable Trustee or any Paying Agent is unable to apply any
money in accordance with the applicable Indenture by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then Enterprise's obligations under
such Indenture and such Debt Securities and any related coupons shall be
revived and reinstated as though no deposit had occurred pursuant to such
Indenture, until such time as such Trustee or Paying Agent is permitted to
apply all such money in accordance with such Indenture; provided, however, that
if Enterprise makes any payment of principal of (or premium, if any) or
interest, if any, on any such Debt Security or any related coupon following the
reinstatement of its obligations, Enterprise shall be subrogated to the rights
of the holders of such Debt Securities and any related coupons to receive such
payment from the money held by such Trustee or Paying Agent.
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within a particular series and any related coupons.
Book-Entry Debt Securities
Debt Securities of a series may be issued in whole or in part in global
form that will be deposited with, or on behalf of, a depository identified in
the Prospectus Supplement. Global securities may be issued in either registered
or bearer form and in either temporary or permanent form (each a "Global
Security"). Unless otherwise provided in the Prospectus Supplement, Debt
Securities that are represented by a Global Security will be issued in
denominations of $1,000 and any integral multiple thereof, and will be issued
in registered form only, without coupons. Payments of principal of (and
premium, if any) and interest, if any, on Debt Securities represented
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by a Global Security will be made by Enterprise to the applicable Trustee, and
then by such Trustee to the depository.
Enterprise anticipates that any Global Securities will be deposited
with, or on behalf of, The Depository Trust Company ("DTC"), New York, New
York, that such Global Securities will be registered in the name of DTC's
nominee, and that the following provisions will apply to the depository
arrangements with respect to any such Global Securities. Additional or
differing terms of the depository arrangements will be described in the
Prospectus Supplement.
So long as DTC or its nominee is the registered owner of a Global
Security, DTC or its nominee, as the case may be, will be considered the sole
holder of the Debt Securities represented by such Global Security for all
purposes under the applicable Indenture. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Debt Securities in
certificated form and will not be considered the owners or holders thereof
under the applicable Indenture. The laws of some states require that certain
purchasers of securities take physical delivery of such securities in
certificated form; such laws may limit the transferability of beneficial
interests in a Global Security.
If (i) DTC is at any time unwilling, unable or ineligible to continue as
depository and a successor depository is not appointed by Enterprise within 90
days following notice to Enterprise; (ii) Enterprise determines, in its sole
discretion, not to have any Debt Securities represented by one or more Global
Securities, or (iii) an Event of Default under the applicable Indenture has
occurred and is continuing, then Enterprise will issue individual Debt
Securities in certificated form in exchange for the relevant Global Securities.
In any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery of individual Debt Securities in
certificated form of like tenor and rank, equal in principal amount to such
beneficial interest and to have such Debt Securities in certificated form
registered in its name. Unless otherwise provided in the Prospectus Supplement,
Debt Securities so issued in certificated form will be issued in denominations
of $1,000 or any integral multiple thereof and will be issued in registered
form only, without coupons.
The following is based on information furnished by DTC and Enterprise
assumes no responsibility for its content:
DTC will act as securities depository for the Debt Securities. The Debt
Securities will be issued as fully registered securities registered in the name
of Cede & Co. (DTC's partnership nominee). One fully registered Debt Security
certificate is issued with respect to a maximum of $200 million of principal
amount of the Debt Securities of a series, and an additional certificate is
issued with respect to any remaining principal amount of such series.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency"
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registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants")
deposit with DTC. DTC also facilitates the settlement among Participants of
securities transactions, such as transfers and pledges, in deposited securities
through electronic computerized book-entry changes in Participants' accounts,
thereby eliminating the need for physical movement of securities certificates.
Direct Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations ("Direct
Participants"). DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and
trust companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants").
The rules applicable to DTC and its Participants are on file with the SEC.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt
Securities on DTC's records. The ownership interest of each actual purchaser of
each Debt Security ("Beneficial Owner") is in turn recorded on the Direct and
Indirect Participants' records. A Beneficial Owner does not receive written
confirmation from DTC of its purchase, but such Beneficial Owner is expected to
receive a written confirmation providing details of the transaction, as well as
periodic statements of its holdings, from the Direct or Indirect Participant
through which such Beneficial Owner entered into the transaction. Transfers of
ownership interests in Debt Securities are accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
do not receive certificates representing their ownership interests in Debt
Securities, except in the event that use of the book-entry system for the Debt
Securities is discontinued.
To facilitate subsequent transfers, the Debt Securities are registered
in the name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co. effects no
change in beneficial ownership. DTC has no knowledge of the actual Beneficial
Owners of the Debt Securities; DTC records reflect only the identity of the
Direct Participants to whose accounts Debt Securities are credited, which may
or may not be the Beneficial Owners. The Participants remain responsible for
keeping account of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners are governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Debt Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of interest of each Direct Participant in such
issue to be redeemed.
Neither DTC nor Cede & Co. consents or votes with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy")
to the issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede
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& Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Debt Securities are credited on the record date (identified on a
list attached to the Omnibus Proxy).
Payments of principal of (and premium, if any) and interest on the Debt
Securities will be made to DTC. DTC's practice is to credit Direct
Participants' accounts on the payable date in accordance with their respective
holdings as shown on DTC's records unless DTC has reason to believe that it
will not receive payment on the payable date. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name", and will be the responsibility of
such Participant and not of DTC, the Paying Agent or Enterprise, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of principal (and premium, if any) and interest to DTC will be the
responsibility of Enterprise or the Paying Agent, disbursement of such payments
to Direct Participants will be the responsibility of DTC, and disbursement of
such payments to the Beneficial Owners will be the responsibility of Direct and
Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Debt Securities at any time by giving reasonable notice to
Enterprise or the applicable Paying Agent. Under such circumstances, in the
event that a successor securities depository is not appointed, Debt Security
certificates are required to be printed and delivered.
Enterprise may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources (including DTC) that Enterprise believes
to be reliable, but Enterprise takes no responsibility for the accuracy
thereof.
Unless stated otherwise in the Prospectus Supplement, the underwriters
or agents with respect to a series of Debt Securities issued as Global
Securities will be Direct Participants in DTC.
None of Enterprise, any underwriter or agent, the applicable Trustee or
any applicable Paying Agent will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
interests in a Global Security, or for maintaining, supervising or reviewing
any records relating to such beneficial interests.
Resignation of Trustee
The Trustee may resign or be removed with respect to one or more series
of Indenture Securities and a successor Trustee may be appointed to act with
respect to such series. (Section 608 of each Indenture) In the event that two
or more persons are acting as Trustee with respect to different series of
Indenture Securities under one of the Indentures, each such Trustee shall be a
Trustee of a trust thereunder separate and
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apart from the trust administered by any other such Trustee (Section 609 of
each Indenture), and any action described herein to be taken by the "Trustee"
may then be taken by each such Trustee with respect to, and only with respect
to, the one or more series of Indenture Securities for which it is Trustee.
Subordinated Indenture Provisions
Subordination
Upon any distribution of assets of Enterprise upon any dissolution,
winding up, liquidation or reorganization, the payment of the principal of (and
premium, if any) and interest, if any, on Subordinated Securities is to be
subordinated to the extent provided in the Subordinated Indenture in right of
payment to the prior payment in full of all Senior Indebtedness (Sections 1601
and 1602 of the Subordinated Indenture), but the obligation of Enterprise to
make payment of the principal (and premium, if any) and interest, if any, on
the Subordinated Securities will not otherwise be affected. (Section 1604 of
the Subordinated Indenture) In addition, no payment on account of principal (or
premium, if any), sinking funds or interest, if any, may be made on the
Subordinated Securities at any time unless full payment of all amounts due in
respect of the principal (and premium, if any), sinking fund and interest on
Senior Indebtedness has been made or duly provided for in money or money's
worth. (Section 1603 of the Subordinated Indenture)
In the event that, notwithstanding the foregoing, any such payment by
Enterprise is received by the Subordinated Trustee or the holders of any of the
Subordinated Securities before all Senior Indebtedness is paid in full, such
payment or distribution shall be paid over to the holders of such Senior
Indebtedness or on their behalf for application to the payment of all such
Senior Indebtedness remaining unpaid until all such Senior Indebtedness has
been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness. Subject to the payment
in full of all Senior Indebtedness upon such distribution of Enterprise, the
holders of the Subordinated Securities will be subrogated to the rights of the
holders of the Senior Indebtedness to the extent of payments made to the
holders of such Senior Indebtedness out of the distributive share of the
Subordinated Securities. (Section 1602 of the Subordinated Indenture) By reason
of such subordination, in the event of a distribution of assets upon
insolvency, certain general creditors of Enterprise may recover more, ratably,
than holders of the Subordinated Securities. The Subordinated Indenture
provides that the subordination provisions thereof will not apply to money and
securities held in trust pursuant to the defeasance provisions of the
Subordinated Indenture. (Section 1402 of the Subordinated Indenture)
"Senior Indebtedness" is defined in the Subordinated Indenture as (a)
the principal of and premium, if any, and unpaid interest on (i) indebtedness
of Enterprise (including indebtedness of others guaranteed by Enterprise),
whether outstanding on the date of the Subordinated Indenture or thereafter
created, incurred, assumed or guaranteed, for money borrowed (other than the
Indenture Securities issued under the Subordinated Indenture and securities
issued under the Indenture dated as of January 1, 1998, including the 7.44%
Deferrable Interest Subordinated Debentures, Series A, the Floating Rate
Deferrable Interest Subordinated Debentures, Series B, and the 7 1/4%
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Deferrable Interest Subordinated Debentures, Series C of Enterprise), unless in
the instrument creating or evidencing the same or pursuant to which the same is
outstanding it is provided that such indebtedness is not senior or prior in
right of payment to the Subordinated Securities, and (ii) renewals, extensions,
modifications and refundings of any such indebtedness. (Section 101 of the
Subordinated Indenture)
The Debt Securities are senior and prior in right of payment to the
7.44% Deferrable Interest Subordinated Debentures, Series A, the Floating Rate
Deferrable Interest Subordinated Debentures, Series B, and the 7 1/4%
Deferrable Interest Subordinated Debentures, Series C of Enterprise and any
guarantees issued in connection therewith.
If this Prospectus is being delivered in connection with a series of
Subordinated Securities, the accompanying Prospectus Supplement or the
information incorporated by reference will set forth the approximate amount of
Senior Indebtedness outstanding as of a recent date.
The Trustee under the Indentures
Enterprise maintains ordinary banking relationships with First Union
National Bank, including credit facilities and lines of credit. First Union
National Bank also serves as trustee under other indentures under which
Enterprise or its subsidiaries is the obligor.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Plan of Distribution
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Enterprise may sell the Debt Securities to or through underwriters,
dealers, or agents or directly to one or more other purchasers.
The Prospectus Supplement sets forth the terms of the offering of the
particular series or issue of Debt Securities to which such Prospectus
Supplement relates, including, as applicable, (i) the name or names of any
underwriters or agents with whom Enterprise has entered into arrangements with
respect to the sale of such Debt Securities, (ii) the initial public offering
or purchase price of such Debt Securities, (iii) any underwriting discounts,
commissions and other items constituting underwriters' compensation from
Enterprise and any other discounts, concessions or commissions allowed or
reallowed or paid by any underwriters to other dealers, (iv) any commissions
paid to any agents, (v) the net proceeds to Enterprise and (vi) the securities
exchanges, if any, on which such Debt Securities will be listed.
Unless otherwise set forth in the Prospectus Supplement relating to a
particular series or issue of Debt Securities, the obligations of the
underwriters to purchase such Debt Securities will be subject to certain
conditions precedent and each of the underwriters with respect to such Debt
Securities will be obligated to purchase all of the Debt Securities of such
series or issue allocated to it if any such Debt Securities
21
<PAGE>
are purchased. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
The Debt Securities may be offered and sold by Enterprise directly or
through agents designated by Enterprise from time to time. Any agent involved
in the offer or sale of the Debt Securities in respect of which this Prospectus
is delivered will be named in, and any commissions payable by Enterprise to
such agent will be set forth in, the applicable Prospectus Supplement. Unless
otherwise indicated in the applicable Prospectus Supplement, each such agent
will be acting on a best efforts basis for the period of its appointment.
Any underwriters, dealers or agents participating in the distribution of
the Debt Securities may be deemed to be underwriters, and any discounts or
commissions received by them on the sale or resale of Debt Securities may be
deemed to be underwriting discounts and commissions, under the Securities Act
of 1933, as amended (the "Securities Act"). Underwriters, dealers and agents
may be entitled, under agreements entered into with Enterprise, to
indemnification by Enterprise against certain civil liabilities, including
liabilities under the Securities Act.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Legal Opinions
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The validity of the Debt Securities will be passed upon for Enterprise
by James T. Foran, Esquire, Associate General Counsel or R. Edwin Selover,
Esquire, Vice President and General Counsel, and for any underwriters, dealers
or agents by Brown & Wood LLP, One World Trade Center, New York, New York 10048
who may rely on the opinion of Mr. Foran or Mr. Selover, as the case may be, as
to matters of New Jersey law. Messrs. Foran and Selover are also employees of
PSE&G.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Experts
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
The consolidated financial statements and the related financial
statement schedules of Enterprise incorporated in this Prospectus by reference
from Enterprise's Annual Report on Form 10-K for the year ended December 31,
1997 have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated herein by reference, and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
22
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses in connection with the
issuance and distribution of the securities being registered, other than
underwriting discounts and commissions. All of the amounts shown are estimates,
except the SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee ............... $ 44,250
Printing and engraving ............. 50,000
Legal fees and expenses ............ 25,000
Fees of accountants ................ 15,000
Fees of trustees ................... 5,000
Blue sky fees and expenses ......... 5,000
NYSE listing fee ................... 22,125
Rating agency fees ................. 78,750
Miscellaneous ...................... 29,875
--------
Total ............................ $275,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Under Section 14A:3-5 of the New Jersey Business Corporation Act,
Enterprise
(1) has power to indemnify each director and officer of Enterprise (as
well as its employees and agents) against expenses and liabilities in
connection with any proceeding involving him by reason of his being or
having been such director or officer, other than a proceeding by or in the
right of Enterprise, if (a) such director or officer acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of Enterprise, and (b) with respect to any criminal proceeding,
such director or officer had no reasonable cause to believe his conduct was
unlawful;
(2) has power to indemnify each director and officer of Enterprise
against expenses in connection with any proceeding by or in the right of
Enterprise to procure a judgment in its favor which involves such director
or officer by reason of his being or having been such director or officer,
if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of Enterprise; however, in such
proceeding no indemnification may be provided in respect to any claim,
issue or matter as to which such director or officer shall have been
adjudged to be liable to Enterprise, unless and only to the extent that the
court determines that the director or officer is fairly reasonably entitled
to indemnity for such expenses as the court shall deem proper;
(3) must indemnify each director and officer against expenses to the
extent that he has been successful on the merits or otherwise in any
proceeding referred to in (1) and (2) above or in defense of any claim,
issue or matter therein; and
(4) has power to purchase and maintain insurance on behalf of a director
or officer against any expenses incurred in any proceeding and any
liabilities asserted against him by reason of his being or having been a
director or officer, whether or not Enterprise would have the power to
indemnify him against such expenses and liabilities under the statute.
As used in the statute, "expenses" means reasonable costs, disbursements
and counsel fees, "liabilities" means amounts paid or incurred in satisfaction
of settlements, judgments, fines and penalties, and "proceeding" means any
pending, threatened or completed civil, criminal, administrative or arbitrative
action, suit or proceeding, and any appeal therein and any inquiry or
investigation which could lead to such action, suit or proceeding.
Indemnification may be awarded by a court under (1) or (2) as well as
under (3) above, notwithstanding a prior determination by Enterprise that the
director or officer has not met the applicable standard of conduct.
Indemnification under the statute does not exclude any other rights to
which a director or officer may be entitled under a certificate of
incorporation, by-law, or otherwise.
II-1
<PAGE>
Article 8, Section 1 of Enterprise's Certificate of Amendment of
Certificate of Incorporation provides as follows:
1. Indemnification:
The corporation shall indemnify to the full extent from time to time
permitted by law any person made, or threatened to be made, a party to any
pending, threatened or completed civil, criminal, administrative or
arbitrative action, suit, or proceeding and any appeal therein (and any
inquiry or investigation which could lead to such action, suit or
proceeding) by reason of the fact that he is or was a director, officer or
employee of the corporation or serves or served any other enterprise as a
director, officer or employee at the request of the corporation. Such right
of indemnification shall inure to the benefit of the legal representative
of any such person.
Article 8, Section 2 of Enterprise's Certificate of Amendment of
Certificate of Incorporation provides as follows:
2. Limitation of Liability:
To the full extent from time to time permitted by law, directors and
officers of the corporation shall not be personally liable to the
corporation or its shareholders for damages for breach of any duty owed to
the corporation or its shareholders. No amendment or repeal of this
provision shall adversely affect any right or protection of a director or
officer of the corporation existing at the time of such amendment or
repeal.
Each form of Underwriting Agreement between Enterprise and the
Underwriters contains a provision under which each Underwriter agrees to
indemnify the directors of Enterprise and each of its officers who signed the
registration statement against certain liabilities which might arise under the
Securities Act of 1933 (the "1933 Act") from information furnished to
Enterprise in writing by or on behalf of such Underwriter.
The directors and officers of Enterprise are insured under policies of
insurance, within the limits and subject to the limitations of the policies,
against claims made against them for acts in the discharge of their duties, and
Enterprise is insured to the extent that it is required or permitted by law to
indemnify the directors and officers for such loss. The premiums for such
insurance are paid by Enterprise.
Item 16. List of Exhibits.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
- --------
<S> <C>
1 Form of Underwriting Agreement for Debt Securities.*
4-1 Form of Senior Indenture for Public Service Enterprise Group Incorporated (Exhibit 4-6).*
4-2 Form of Subordinated Indenture for Public Service Enterprise Group Incorporated (Exhibit 4-7).*
4-3 Form of Senior Debt Security.***
4-4 Form of Subordinated Debt Security.***
5 Opinion of James T. Foran, Esquire relating to the validity of the Debt Securities, including consent.**
12 Computations of Ratios of Earnings to Fixed Charges (incorporated by reference to Exhibit 12 to
Enterprise's Annual Report on Form 10-K for the year ended December 31, 1997).**
23-1 Consent of Independent Auditors.**
23-2 Consent of James T. Foran, Esquire (included in Exhibit 5).**
24 Power of Attorney.**
25-1 Statement of Eligibility under the Trust Indenture Act of 1939 of First Union National Bank, as
Indenture Trustee under the Senior Indenture for Public Service Enterprise Group Incorporated.**
25-2 Statement of Eligibility under the Trust Indenture Act of 1939 of First Union National Bank, as
Indenture Trustee under the Subordinated Indenture for Public Service Enterprise Group Incorporated.**
</TABLE>
- ---------
* Previously filed as the indicated exhibit to Registration Statement on Form
S-3 (No. 333-52847) and incorporated herein by reference.
** Previously filed as the indicated exhibit to Registration Statement on Form
S-3 (No. 333-65261)
*** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
Item 17. Undertakings.
The undersigned registrant hereby undertakes (a):
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the 1933
Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1) (i) and (a)(1) (ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
II-2
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
thereby, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions referred to in Item 15 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, Public Service Enterprise Group Incorporated, certifies that it has
reasonable grounds to believe it meets all of the requirements for filing on
Form S-3 and has duly caused this Amendment No. 1 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Newark, State of New Jersey, on this 12th day of November, 1998.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
By: /s/ ROBERT C. MURRAY
------------------------------------
Robert C. Murray
Vice President and Chief Financial
Officer
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
- ----------------------------------------- ------------------------------------------ ------------------
<S> <C> <C>
/s/ E. James Ferland Principal Executive Officer and Director November 12, 1998
- ----------------------------------
E. James Ferland
/s/ Robert C. Murray Principal Financial Officer November 12, 1998
- ----------------------------------
Robert C. Murray
/s/ Patricia A. Rado Principal Accounting Officer November 12, 1998
- ----------------------------------
Patricia A. Rado
</TABLE>
This Amendment No. 1 to the Registration Statement has also been signed by
Robert C. Murray, Attorney-in-Fact, on behalf of the following Directors on
November 12, 1998.
Lawrence R. Codey Irwin Lerner
Ernest H. Drew Marilyn M. Pfaltz
T.J. Dermot Dunphy Forrest J. Remick
Raymond V. Gilmartin Richard J. Swift
Conrad K. Harper Josh S. Weston
By: /s/ ROBERT C. MURRAY
-----------------------
ROBERT C. MURRAY
ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
- --------
<S> <C>
1 Form of Underwriting Agreement for Debt Securities.*
4-1 Form of Senior Indenture for Public Service Enterprise Group Incorporated (Exhibit 4-6).*
4-2 Form of Subordinated Indenture for Public Service Enterprise Group Incorporated (Exhibit 4-7).*
4-3 Form of Senior Debt Security.***
4-4 Form of Subordinated Debt Security.***
5 Opinion of James T. Foran, Esquire relating to the validity of the Debt Securities, including consent.**
12 Computations of Ratios of Earnings to Fixed Charges (incorporated by reference to Exhibit 12 to
Enterprise's Annual Report on Form 10-K for the year ended December 31, 1997).**
23-1 Consent of Independent Auditors.**
23-2 Consent of James T. Foran, Esquire (included in Exhibit 5).**
24 Power of Attorney.**
25-1 Statement of Eligibility under the Trust Indenture Act of 1939 of First Union National Bank, as
Indenture Trustee under the Senior Indenture for Public Service Enterprise Group Incorporated.**
25-2 Statement of Eligibility under the Trust Indenture Act of 1939 of First Union National Bank, as
Indenture Trustee under the Subordinated Indenture for Public Service Enterprise Group Incorporated.**
</TABLE>
- ---------
* Previously filed as the indicated exhibit to Registration Statement on Form
S-3 (No. 333-52847) and incorporated herein by reference.
** Previously filed as the indicated exhibit to Registration Statement on Form
S-3 (No. 333-65261)
*** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
Exhibit 4
[FORM OF NOTE]
REGISTERED REGISTERED
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
EXTENDIBLE NOTES, 200
NO. PRINCIPAL AMOUNT: $
CUSIP:
Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust company (55 Water Street, New York, New
York) ("DTC"), to the issuer or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC and any payment is made to Cede & Co., 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.
Dated: ---------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK, as Trustee
By:
--------------------------------------
Authorized Signatory
<PAGE>
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED, a corporation duly organized
and existing under the laws of the State of New Jersey (herein referred to as
the "Company"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal amount of ($ ), on , 200
("Stated Maturity") (unless and to the extent earlier redeemed or repaid prior
to such date) and to pay interest thereon from , 199 or from the
most recent Interest Payment Date (as defined below) to which interest has been
paid or duly provided for in arrears on , , and , in each
year, commencing , 199 , or any other date as shall be established by the
Company as an interest payment date in accordance with the provisions set forth
below (each, an "Interest Payment Date"), and at maturity or earlier
redemption, until the principal hereof is paid or made available for payment.
Interest payments for this Note will include interest accrued to but excluding
each Interest Payment Date. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date, which shall be the 15th calendar day (whether or not a
Business Day) next preceding such Interest Payment Date. Except as otherwise
provided in the Indenture, any interest not punctually paid or duly provided
for on any Interest Payment Date ("Defaulted Interest") will forthwith cease to
be payable to the Holder on the Regular Record Date with respect to such
Interest Payment Date by virtue of having been such Holder and may either (1)
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee (as defined
below), notice of which shall be given to Holders of Notes not less than 10
days prior to such Special Record Date, or (2) be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. Payment of the
principal of and interest, if any, on this Note will be made at the Corporate
Trust Office of the Trustee or at the office or agency of the Trustee
maintained for that purpose in the Borough of Manhattan, The City of New York,
and at any other office or agency maintained by the Company for such purpose,
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; provided,
however, that at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register and provided, further, that the Holder of
this Note shall be entitled to receive payments of principal of and interest,
if any, on this Note by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 days prior to the applicable payment date.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee or its duly appointed co-authenticating agent by manual signature, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Note is one of a duly authorized issue of securities (the
"Securities") of the Company (which term include any successor corporation
under the Indenture hereinafter referred to) issued and to be issued pursuant
to such Indenture. This Security is one of a Series designated by the Company
as its Extendible Notes due , 200 (the "Notes"). The Indenture does not
limit the aggregate principal amount of the Notes or the Securities.
The Company issued this Note pursuant to an Indenture, dated as of ,
199 (the "Indenture" which term, for the purpose of this Note, shall include
the Officers' Certificate dated , 199 , delivered pursuant to Sections 201
and 301 of the Indenture), between the Company and First Union National Bank,
as trustee (the "Trustee," which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
The Notes are issuable as Registered Securities, without coupons, in
denominations of $1,000 and any amount in excess thereof, which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of like tenor of any authorized denomination, as
requested by the Holder surrendering the same, upon surrender of the Note or
Notes to be exchanged at any office or agency described below where Notes may
be presented for registration of transfer.
2
<PAGE>
Certain provisions relating to the remarketing of the Notes set forth
below are contained in a Remarketing Agreement dated as of , 199 (the
"Remarketing Agreement") between the Company and , as Remarketing
Agent (the "Remarketing Agent").
During the period from and including , 199 to but excluding ,
200 (the "Initial Spread Period"), interest on this Note will be payable
quarterly in arrears, on , , , , , and ,
commencing , 199 , except as described below. During the Initial Spread
Period the interest rate on the Notes will be reset quarterly, effective on
each , , and (each, an "Interest Reset Date" in respect of
the Initial Spread Period), and the Notes will bear interest at a per annum
rate (computed 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 Reset
Period (as defined below), plus the Initial Spread (as defined below). Interest
on this Note will accrue from and including 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. The "Initial Interest Reset Period" will be the
period from and including the date of original issuance of the Notes to but
excluding , 199 . Thereafter, each "Interest Reset Period" during the
Initial Spread Period will be the quarterly period from and including the most
recent Interest Reset Date to but excluding the next succeeding Interest Reset
Date.
The Spread applicable to the Notes during the Initial Spread Period will
be % (the "Initial Spread"), and the interest rate mode used for the Initial
Spread Period will be the Floating Rate Mode. Thus, the interest rate per annum
for the Notes during the Initial Interest Reset Period will be equal to LIBOR,
determined as of , 1998, plus %. The interest rate per annum for each
succeeding Interest Reset Period during the Initial Spread Period will equal
LIBOR for such Interest Reset Period (as calculated below) plus the Initial
Spread. Thereafter, the Spread will be determined in the manner described
herein for each period from and including each Remarketing Reset Date (as
defined below) to but excluding each next succeeding Remarketing Reset Date (a
"Subsequent Spread Period"), which will be one or more periods of at least
three months and not more than the period remaining to the Stated Maturity of
this Note (or any integral multiple of three months therein), designated by the
Company, commencing on or (or as otherwise specified by the Company
and the Remarketing Agent on the applicable Duration/Mode Determination Date
(as defined below) in connection with the establishment of each Subsequent
Spread Period), as applicable (each such date, a "Remarketing Reset Date"),
through and including , 200 (it being understood that no Subsequent
Spread Period may end after , 200 ). The first Remarketing Reset Date will
be , 200 .
If this Note is to be reset to the Floating Rate Mode, as agreed to by the
Company and the Remarketing Agent on a Duration/Mode Determination Date, then
during the corresponding Subsequent Spread Period, (i) the interest rate on
this Note will be reset monthly, quarterly or semiannually (each, an "Interest
Reset Period" during the Subsequent Spread Periods) and this Note will bear
interest at a per annum rate (computed on the basis of the actual number of
days elapsed over a 360-day year) equal to LIBOR for the applicable Interest
Reset Period, plus the applicable Spread and (ii) interest on this Note for
each Subsequent Spread Period will be payable either monthly, quarterly or
semiannually on such dates (each such date, an "Interest Payment Date" in
respect of the Subsequent Spread Period) as specified by the Company and the
Remarketing Agent on the applicable Duration/Mode Determination Date. Unless
otherwise specified on the applicable Duration/Mode Determination Date for
Notes in the Floating Rate Mode, interest on this Note will be payable, in the
case of Notes which reset (i) monthly, on the third day of each month; (ii)
quarterly, on the third day of each , , and ; and (iii)
semiannually, on the third day of each and . The first day of an
Interest Reset Period is referred to herein as an "Interest Reset Date" in
respect of the Subsequent Spread Period and, unless otherwise specified on the
applicable Duration/Mode Determination Date, will be, in the case of Notes
which reset (i) monthly, on the third day of each month; (ii) quarterly, on the
third day of each , , and , and (iii) semiannually, on the third
day of each and .
The interest rate in effect on each day will be (i) if such day is an
Interest Reset Date, the interest rate determined as of the Floating Rate
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Floating Rate Determination Date immediately preceding the
most recent Interest Reset Date.
If any Interest Payment Date (other than at Stated Maturity), Redemption
Date, Interest Reset Date or Remarketing Reset Date in the Floating Rate Mode
would otherwise be a day that is not a Business Day (as defined below), such
Interest Payment Date, Redemption Date, Interest Reset Date or Remarketing
Reset Date will be postponed to the next succeeding day that is a Business Day,
except that if such Business Day is in the next succeeding calendar month, such
Interest Payment Date, Redemption Date, Interest Reset Date or Remarketing
Reset Date shall be the next preceding Business Day.
3
<PAGE>
The interest rate applicable to each Interest Reset Period commencing on
the related Interest Reset Date will be the rate determined as of the
applicable Floating Rate Determination Date. The "Floating Rate Determination
Date" will be the second London Business Day (as defined below) immediately
preceding the applicable Interest Reset Date.
For the Initial Spread Period and if the Notes are reset to the Floating
Rate Mode for a Subsequent Spread Period, LIBOR will be determined by the Rate
Agent (as defined below) as of the applicable Floating Rate Determination Date
in accordance with the following provisions:
(i) LIBOR will be determined on the basis of the offered rates for
deposits in U.S. dollars of not less than U.S.$1,000,000 of the applicable
Index Maturity (as defined below), commencing on the second London Business
Day immediately following such Floating Rate Determination Date, which
appears on Telerate page 3750 (as defined below) as of approximately 11:00
a.m., London time, on such Floating Rate Determination Date. "Telerate page
3750" means the display designated on page "3750"on Bridge Telerate, Inc.
(or such other page as may replace the 3750 page on that service, any
successor service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying London
interbank offered rates for U.S. dollar deposits). If no rate appears on
Telerate page 3750, LIBOR for such Floating Rate Determination Date will be
determined in accordance with the provisions of paragraph (ii) below.
(ii) With respect to a Floating Rate Determination Date on which no rate
appears on Telerate page 3750 as of approximately 11:00 a.m., London time,
on such Floating Rate Determination Date, the Rate Agent shall request the
principal London offices of each of four major reference banks in the
London interbank market selected by the Rate Agent to provide the Rate
Agent with a quotation of the rate at which deposits of the applicable
Index Maturity in U.S. dollars, commencing on the second London Business
Day immediately following such Floating Rate Determination Date, are
offered by it to prime banks in the London interbank markets as of
approximately 11:00 a.m., London time, on such Floating Rate Determination
Date in a principal amount equal to an amount of not less than
U.S.$1,000,000 that is representative for a single transaction in such
market at such time. If at least two such quotations are provided, LIBOR
for such Floating Rate Determination Date will be the arithmetic mean of
such quotations as calculated by the Rate Agent. If fewer than two
quotations are provided, LIBOR for such Floating Rate Determination Date
will be the arithmetic mean of the rates quoted as of approximately 11:00
a.m., New York City time, on such Floating Rate Determination Date by three
major banks in The City of New York selected by the Rate Agent (after
consultation with the Company) for loans in U.S. dollars to leading
European banks of the applicable Index Maturity commencing on the second
London Business Day immediately following such Floating Rate Determination
Date and in a principal amount equal to an amount of not less than
U.S.$1,000,000 that is representative for a single transaction in such
market at such time; provided, however, that if the banks selected as
aforesaid by the Rate Agent are not quoting as mentioned in this sentence,
LIBOR for such Floating Rate Determination Date will be LIBOR determined
with respect to the immediately preceding Floating Rate Determination Date,
or in the case of the first Floating Rate Determination Date, LIBOR for the
Initial Interest Reset Period.
The "Index Maturity" applicable to Notes in the Floating Rate Mode will
be, in the case of Notes resetting (i) monthly, one month; (ii) quarterly,
three months; and (iii) semiannually, six months.
If this Note is to be reset to the Fixed Rate Mode, as agreed to by the
Company and the Remarketing Agent on a Duration/Mode Determination Date, then
the applicable Fixed Rate for the corresponding Subsequent Spread Period will
be determined by 1:00 p.m., New York City time, on the second Business Day
prior to the Remarketing Reset Date for such Subsequent Spread Period (the
"Fixed Rate Determination Date"), in accordance with the following provisions:
the Fixed Rate will be determined by (i) adding the applicable Spread (as
determined by the Remarketing Agent and agreed to by the Company on the
preceding Spread Determination Date) to (ii) the yield to maturity determined
by 1:00 p.m., New York City time, on the Fixed Rate Determination Date
(expressed as a bond equivalent, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the applicable United States
Treasury security, selected by the Rate Agent after consultation with the
Remarketing Agent, as having a maturity comparable to the duration selected for
the following Subsequent Spread Period, which would be used in accordance with
customary financial practice in pricing new issues of corporate debt securities
of comparable maturity to the duration selected for the following Subsequent
Spread Period.
Interest in the Fixed Rate Mode will be computed on the basis of a 360-day
year of twelve 30-day months. Such interest will be payable semiannually in
arrears on the Interest Payment Dates (i.e., and , unless
otherwise specified by the Company and the Remarketing Agent on the applicable
Duration/Mode Determination
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Date) at the applicable Fixed Rate, as determined by the Company and the
Remarketing Agent on the Fixed Rate Determination Date, beginning on the
applicable Remarketing Reset Date and continuing for the duration of the
relevant Subsequent Spread Period.
If any Interest Payment Date or any Redemption Date in the Fixed Rate Mode
would otherwise be a day that is not a Business Day (in either case, other than
any Interest Payment Date or Redemption Date that falls on a Remarketing Reset
Date, in which case such date will be postponed to the next day that is a
Business Day), the related payment of principal and interest will be made on
the next succeeding Business Day as if it were made on the date such payment
was due, and no interest will accrue on the amounts so payable for the period
from and after such date to the next succeeding Business Day.
Unless notice of redemption of the Notes as a whole has been given, after
the Initial Spread Period, the duration, Redemption Dates, redemption type
(i.e., par, premium or make-whole, as described below), Redemption Prices (if
applicable), Remarketing Reset Date, Interest Reset Dates, Interest Payment
Dates, interest rate mode, and any other relevant terms for each Subsequent
Spread Period will be agreed to by the Company and the Remarketing Agent by
3:00 p.m., New York City time, on the eighth Business Day prior to the
Remarketing Reset Date which commences such Subsequent Spread Period (the
"Duration/Mode Determination Date"), and the Spread for each Subsequent Spread
Period will be agreed to by the Company and the Remarketing Agent by 1:00 p.m.,
New York City time, on the third Business Day prior to the Remarketing Reset
Date which commences such Subsequent Spread Period (the "Spread Determination
Date"). Interest on this Note during each Subsequent Spread Period shall
accrue, as applicable, either (i) at a floating interest rate (such Note being
in the "Floating Rate Mode" and such interest rate being a "Floating Rate") or
(ii) at a fixed interest rate (such Note being in the "Fixed Rate Mode" and
such interest being a "Fixed Rate"), in each case as determined by the
Remarketing Agent and the Company in accordance with the Remarketing Agreement.
The term "Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in The City of New York are required or
authorized to close and, if this Note is in the Floating Rate Mode (as defined
below), that is also a London Business Day. The term "London Business Day"
means any day on which dealings in deposits in U.S. dollars are transacted in
the London interbank market.
IN THE EVENT THAT THE COMPANY AND REMARKETING AGENT DO NOT AGREE ON THE
SPREAD FOR ANY SUBSEQUENT SPREAD PERIOD, THEN THE COMPANY IS REQUIRED
UNCONDITIONALLY TO REPURCHASE AND RETIRE ALL OF THE NOTES ON THE REMARKETING
RESET DATE AT A PRICE EQUAL TO 100% OF THE PRINCIPAL AMOUNT OF THE NOTES,
TOGETHER WITH ACCRUED AND UNPAID INTEREST, IF ANY, THEREON TO THE REMARKETING
RESET DATE.
All percentages resulting from any calculation of any interest rate for
this Note will 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 will be rounded to the nearest cent, with
one-half cent being rounded upward.
In the event the Company and the Remarketing Agent agree on the Spread on
the Spread Determination Date with respect to any Subsequent Spread Period, the
Company and the Remarketing Agent will enter into a Remarketing Agency
Agreement (the "Remarketing Agency Agreement") on such Spread Determination
Date. On the Remarketing Reset Date which commences such Subsequent Spread
Period, this Note will be automatically tendered, or deemed tendered, to the
Remarketing Agent for remarketing by the Remarketing Agent on the Remarketing
Reset Date at 100% of the principal amount hereof (the "Purchase Price") unless
the beneficial owner of this Note, at such owner's option, upon giving notice
as provided below (the "Hold Notice"), elects not to tender this Note. Subject
to the second succeeding paragraph, the Purchase Price will be paid by the
Remarketing Agent in accordance with the standard procedures of DTC, which
currently provide for payments in same-day funds. Interest accrued on such
Notes with respect to the preceding interest period will be paid by the Company
in the manner described above.
The Hold Notice must be received by the Remarketing Agent during the
period commencing at , New York City time, on and ending at ,
New York City time, on the Business Day following such Spread Determination
Date for such Subsequent Spread Period (the "Notice Date"). Except as otherwise
provided below, a Hold Notice shall be irrevocable. If a Hold Notice is not
received for any reason by the Remarketing Agent with respect to this Note by
12:00 noon, New York City time, on the Notice Date, the beneficial owner of
this Note shall be deemed to have elected to tender this Note for purchase by
the Remarketing Agent.
In the event that the Remarketing Agent is unable to remarket some or all
of the tendered Notes and, in its sole discretion, chooses not to purchase such
tendered Notes, the Company is obligated unconditionally to purchase and retire
on
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<PAGE>
the Remarketing Reset Date the remaining unsold tendered Notes at a price equal
to 100% of the principal amount thereof, plus accrued and unpaid interest, if
any, thereon to the applicable Remarketing Reset Date.
Notwithstanding anything to the contrary contained herein, the Remarketing
Agent shall have the option, but not the obligation, to purchase any Notes
tendered to it that it is not able to remarket. If the Remarketing Agent is
unable to remarket the entire principal amount of all Notes tendered on any
Remarketing Reset Date and, in its sole discretion, the Remarketing Agent
chooses not to purchase such tendered Notes, it will promptly notify the
Company and the Trustee. No beneficial owner of any Note shall have any rights
or claims against the Remarketing Agent as a result of the Remarketing Agent
not purchasing such Notes.
The term "Remarketing Agent" means the nationally recognized broker-dealer
selected by the Company to act as Remarketing Agent. Pursuant to the
Remarketing Agreement, has agreed to act as Remarketing Agent. The term
"Rate Agent" means the entity selected by the Company as its agent to determine
(i) LIBOR and the interest rate on the Notes for any Interest Reset Period
and/or (ii) the yield to maturity on the applicable United States Treasury
security that is used in connection with the determination of the applicable
Fixed Rate, and the ensuing applicable Fixed Rate. Pursuant to the Remarketing
Agreement, has agreed to act as Rate Agent in respect of any Fixed Rate
Mode, and pursuant to a Calculation Agency Agreement, First Union National Bank
has agreed to act as the Rate Agent in respect of any Floating Rate Mode. The
Company, in its sole discretion, may change the Remarketing Agent and the Rate
Agent for any Subsequent Spread Period at any time on or prior to 3:00 p.m.,
New York City time, on the Duration/Mode Determination Date relating thereto.
This Note may not be redeemed by the Company prior to , 200 . On that
date, on each subsequent Remarketing Reset Date and on those Interest Payment
Dates specified as Redemption Dates by the Company on the Duration/Mode
Determination Date in connection with any Subsequent Spread Period, the Notes
may be redeemed, at the option of the Company, in whole or in part, upon notice
thereof (as described below) given at any time during the 30 calendar day
period ending on the Business Day prior to the Redemption Date, in
accordance with the redemption type selected on the Duration/Mode Determination
Date. This Note is also subject to redemption in accordance with other
provisions specified above. In the event that less than all of the outstanding
Notes are to be redeemed, the Notes to be redeemed shall be selected by such
method as the Company shall deem fair and appropriate.
The redemption type to be chosen by the Company and the Remarketing Agent
on the Duration/Mode Determination Date with respect to any Subsequent Spread
Period may be one of the following as defined herein: (i) Par Redemption; (ii)
Premium Redemption; or (iii) Make-Whole Redemption. "Par Redemption" means
redemption at a redemption price equal to 100% of the principal amount thereof,
plus unpaid interest thereon, if any, accrued to the Redemption Date. "Premium
Redemption" means redemption at a redemption price or prices greater than 100%
of the principal amount thereof, plus unpaid interest thereon, if any, accrued
to the Redemption Date, as determined on the Duration/Mode Determination Date.
"Make-Whole Redemption" means redemption at a redemption price equal to the
Make-Whole Amount (as defined below) with respect to such Notes. Unless
otherwise specified by the Company and the Remarketing Agent on any
Duration/Mode Determination Date, the redemption type will be Par Redemption.
"Make-Whole Amount" means, in connection with any optional redemption of
any Note, an amount equal to the greater of (i) 100% of its principal amount
plus accrued interest, if any, thereon to the date of redemption and (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest thereon discounted to the date of redemption on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the applicable
Treasury Yield plus the Reinvestment Spread.
"Treasury Yield" means, with respect to any Redemption Date applicable to
any of the Notes, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the applicable Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means, with respect to the Notes subject to
redemption, the United States Treasury security selected by the Remarketing
Agent as having a maturity comparable to the remaining term of the Notes 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 to the remaining term of the Notes. "Comparable Treasury
Price" means, with respect to any Redemption Date applicable to the Notes
subject to redemption, (i) the average of the applicable Reference Treasury
Dealer Quotations for such Redemption Date, after excluding the highest and
lowest of such applicable Reference Treasury Dealer Quotations, or (ii) if the
Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the
average of
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<PAGE>
all such Quotations, or (iii) if only one Reference Treasury Dealer Quotation
is received, such Quotation. "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any Redemption Date for the Notes
subject to redemption, the average, as determined by the Trustee, of the bid
and asked prices for the Comparable Treasury Issue for the Notes (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 3:30 p.m. on the third business
day preceding such Redemption Date.
"Reference Treasury Dealer" means, with respect to the Notes subject to
redemption, at least four primary U.S. Government securities dealers in New
York City as the Company shall select, which may include the Remarketing Agent
or an affiliate thereof.
"Reinvestment Spread" means, with respect to the Notes subject to
redemption, a number, expressed as a number of basis points or as a percentage,
selected by the Company and agreed to by the Remarketing Agent on the
Duration/Mode Determination Date.
All notices of redemption shall state the Redemption Date, the Redemption
Price, if fewer than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Notes to be redeemed, that on the Redemption Date the
Redemption Price will become due and payable upon each Note, or portion
thereof, to be redeemed, that interest on each Note, or portion thereof, called
for redemption will cease to accrue on the Redemption Date and the place or
places where Notes may be surrendered for redemption.
In the event of redemption of this Note in part only, a new Note or Notes
of like tenor for the unredeemed portion hereof will be issued in authorized
denominations in the name of the Holder hereof upon the cancellation hereof.
For all purposes of this Note and the Indenture, unless the context
otherwise requires, all provisions relating to the redemption by the Company of
this Note shall relate, in the case that this Note is redeemed or to be
redeemed by the Company only in part to that portion of the principal amount of
this Note that has been or is to be redeemed.
If an Event of Default (as set forth in the Indenture) with respect to
Notes shall occur 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.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Securities. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of Holders of the Securities of each
series to be affected 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 the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all the Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange herefor 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,
subject to the provisions for satisfaction and discharge in Article Four of 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 Note
at the times, place and rate, and in the coin or currency, herein prescribed.
The Indenture permits the Company, by irrevocably depositing, in amounts
and maturities sufficient to pay and discharge at the Stated Maturity or
Redemption Date, as the case may be, the entire indebtedness on all Outstanding
Notes, cash or U.S. Government Obligations with the Trustee in trust solely for
the benefit of the Holders of all Outstanding Notes, to defease the Indenture
with respect to such Notes, and upon such deposit the Company shall be deemed
to have paid and discharged its entire indebtedness on such Notes. Thereafter,
Holders would be able to look only to such trust fund for payment of principal
and interest at the Stated Maturity or Redemption Date, as the case may be.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of Notes is registrable in the Security Register, upon
surrender of a Note for registration of transfer at the Corporate Trust Office
of the Trustee or at
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<PAGE>
the office or agency of the Trustee in the Borough of Manhattan, The City of
New York, or at such other offices or agencies as the Company may designate,
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 like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made by the Company, the Trustee or the
Security Registrar 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 (other than exchanges
pursuant to Sections 304, 906 or 1107 of the Indenture, not involving any
transfer).
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
Person in whose name this Note is registered 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.
This Note shall be governed by and construed in accordance with the laws
of the State of New York, including without limitation, section 5-1401 of The
New York General Obligations Law.
All undefined terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
8
<PAGE>
IN WITNESS WHEREOF, Public Service Enterprise Group Incorporated has
caused this Instrument to be signed by the signature or facsimile signature of
its Chairman of the Board, its President, a Vice President, its Treasurer or an
Assistant Treasurer and attested by its Secretary or an Assistant Secretary by
his signature or a facsimile thereof, and its corporate seal or a facsimile of
its corporate seal to be affixed hereunto or imprinted hereon.
(SEAL) PUBLIC SERVICE ENTERPRISE
GROUP INCORPORATED
By _____________________________
Title:
Attest:
- ----------------------------
Title:
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT ---- Custodian ----
(Cust.) (Minor)
TEN ENT -- as tenants by the entiretios
JT_TEN -- as joint tenants with right of survivor- Under Uniform Gifts to
ship and not as tenants in common Minor Act
(State)
Additional abbreviations may also be used though not in the above list.
---------------
FOR VALUE RECEIVED, the undersigned hereby sells(s), assign(s) and transfer(s)
unto
Please Insert Social Security or Employer
Identification number of assignee
- --------------------------------------------------------------------------------
Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee
- --------------------------------------------------------------------------------
The within Security and all rights thereunder, hereby irrevocably constituting
and appointing attorney to transfer said Security on the books of the
Company, with full power of substitution in the premises.
Dated: ------------- ----------------------
Signature
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
