As filed with the Securities and Exchange Commission on May 21, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------
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 07101-1171
(973) 430-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
-----------------
Robert C. Murray
Vice President and Chief Financial Officer
80 Park Plaza
P.O. Box 1171
Newark, New Jersey 07101-1171
(973) 430-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
with copies to:
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 07101-1171
Approximate date of commencement of proposed sale to the public:
After the Registration Statement becomes effective, as determined by market
conditions and other factors.
-----------------
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. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Each Class of Amount To Be Offering Price Per Aggregate Offering Amount of
Securities To Be Registered Registered (1) Unit (2) Price (2) Registration Fee(3)
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $300,000,000 100% $300,000,000 $83,400
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</TABLE>
(1) There is being registered hereunder a presently indeterminate principal
amount of Debt Securities which may be either Senior Debt or Subordinated
Debt Securities with an aggregate initial offering price not to exceed
$300,000,000.
(2) Estimated solely for the purpose of determining the registration fee.
(3) $75,000,000 aggregate principal amount of Senior Debt Securities and
Subordinated Debt Securities registered on Form S-3, File No. 333-65261, as
to which filing fees of $22,125 were previously paid are being carried
forward pursuant to Rule 429 of the rules and regulations under the
Securities Act of 1933, as amended.
-----------------
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
prospectus included in this registration statement also relates to $75,000,000
aggregate principal amount of Senior Debt Securities and Subordinated Debt
Securities registered on Form S-3, File No. 333-65261 previously filed by the
registrant and declared effective on November 13, 1998 which have not been
offered or sold as of the date of this registration statement. This amendment
also constitutes post-effective amendment no. 1 to registration statement
333-65261, and such post-effective amendment no. 1 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.
-----------------
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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<PAGE>
Subject to Completion, Dated May 21, 1999
PROSPECTUS
Public Service Enterprise Group Incorporated
80 Park Plaza
P.O. Box 1171
Newark, New Jersey 07101-1171
(973) 430-7000
[LOGO] PSEG
$375,000,000
Debt Securities
---------------
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 $375,000,000.
---------------
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 , 1999.
<PAGE>
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About This Prospectus
================================================================================
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 $375,000,000. 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
================================================================================
Enterprise is a New Jersey corporation that 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
================================================================================
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, 1998.
2. Enterprise's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
3. Enterprise's Current Reports on Form 8-K dated March 17, 1999 and
April 21, 1999.
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
================================================================================
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.
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Energy Holdings is the parent of Enterprise's non-utility businesses: PSEG
Global Inc., 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 07102, and its telephone number is (973) 430-7000.
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Use of Proceeds
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Except as may be described otherwise in a prospectus supplement, 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. Such proceeds may be applied to the reduction
of short-term indebtedness incurred for such purposes.
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Description of Debt Securities
================================================================================
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, dated as of
November 1, 1998 (the "Senior Indenture"), 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."
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 March 31, 1999, Enterprise's subsidiaries had
approximately $6.2 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.
(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.
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(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.
(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.
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(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.
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.
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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 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
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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, principal,
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 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)
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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 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
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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)
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)
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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 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") 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
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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 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
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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 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
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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 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
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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 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
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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"
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
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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 & 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.
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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 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
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)
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"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 71/4% 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 71/4% 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 are the obligors.
================================================================================
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
20
<PAGE>
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 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. 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.
21
<PAGE>
================================================================================
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,
1998 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.
SEC registration fee ...................................................$ 83,400
Printing and engraving ................................................. 50,000
Legal fees and expenses ................................................ 25,000
Fees of accountants .................................................... 15,000
Fees of trustees ....................................................... 15,000
Blue sky fees and expenses ............................................. 5,000
Rating agency fee ...................................................... 157,500
Miscellaneous .......................................................... 24,100
--------
Total ..............................................................$375,000
========
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, as amended, 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
- -------
1 Form of Underwriting Agreement for Debt Securities. (Exhibit 1).1
4-1 Senior Indenture from Public Service Enterprise Group Incorporated to
First Union National Bank, dated as of November 1, 1998, relating to
the Senior Debt Securities. (Exhibit 4f).2
4-2 Form of Subordinated Indenture for Public Service Enterprise Group
Incorporated (Exhibit 4-7).1
4-3 Form of Extendible Note (Exhibit 4).3
4-4 Form of Senior Debt Security.4
4-5 Form of Subordinated Debt Security.4
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 Quarterly Report on Form 10-Q
for the quarter ended March 31, 1999).
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.
- ----------
1 Previously filed as the indicated exhibit to Registration Statement on
Form S-3 (No. 333-52847) and incorporated herein by reference.
2 Previously filed as the indicated exhibit to the Annual Report on Form
10-K for the year ended December 31, 1998, File No. 1-9120.
3 Previously filed as the indicated exhibit to Registration Statement on
Form S-3 (No. 333-65261) and incorporated herein by reference.
4 To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
II-2
<PAGE>
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 or Form S-8 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.
(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.
(d) The registrant hereby undertakes that:
(1) For purposes of determining any liability under the 1933 Act,
the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the 1933 Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the 1933 Act,
each post-effective amendment that contains a form of prospectus 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.
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 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 21 day of May, 1999.
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
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
------- ------ ----
/s/ E. JAMES FERLAND Principal Executive Officer and Director May 21, 1999
- ---------------------
E. James Ferland
/s/ ROBERT C. MURRAY Principal Financial Officer May 21, 1999
- ---------------------
Robert C. Murray
/s/ PATRICIA A. RADO Principal Accounting Officer May 21, 1999
- ---------------------
Patricia A. Rado
This Registration Statement has also been signed by Robert C. Murray,
Attorney-in-Fact, on behalf of the following Directors on May 21, 1999.
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
By: /s/ ROBERT C. MURRAY
--------------------------------
ROBERT C. MURRAY
ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT INDEX
Exhibit
- -------
1 Form of Underwriting Agreement for Debt Securities (Exhibit 1).1
4-1 Senior Indenture from Public Service Enterprise Group Incorporated to
First Union National Bank, dated as of November 1, 1998, relating to
the Senior Debt Securities. (Exhibit 4f).2
4-2 Form of Subordinated Indenture for Public Service Enterprise Group
Incorporated (Exhibit 4-7).1
4-3 Form of Extendible Note (Exhibit 4).3
4-4 Form of Senior Debt Security.4
4-5 Form of Subordinated Debt Security.4
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
Quarterly Report on Form 10-Q for the quarter ended March 31, 1999).
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.
- ----------
1 Previously filed as the indicated exhibit to Registration Statement on
Form S-3 (No. 333-52847) and incorporated herein by reference.
2 Previously filed as the indicated exhibit to the Annual Report on Form
10-K for the year ended December 31, 1998, File No. 1-9120.
3 Previously filed as the indicated exhibit to Registration Statement on
Form S-3 (No. 333-65261) and incorporated herein by reference.
4 To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
II-6
Exhibit 5
May 20, 1999
Public Service Enterprise Group Incorporated
80 Park Plaza
P.O. Box 1171
Newark, NJ 07101-1171
Re: $375,000,000 aggregate principal amount of Senior Debt Securities
and/or Subordinated Debt Securities (the "Debt Securities") to be
issued in one or more series by Public Service Enterprise Group
Incorporated (the "Company").
Ladies and Gentlemen:
I am Associate General Counsel of the Company and, in that capacity, I
have represented the Company in connection with the proposed issuance, from time
to time, in one or more series, by the Company of $375,000,000 aggregate
principal amount of the Debt Securities. The Debt Securities will be issued
under certain indentures (each, as supplemented from time to time, an
"Indenture") between the Company and First Union National Bank as Trustee. All
capitalized terms used herein unless defined herein shall have the meanings
specified in the Registration Statement hereinafter described.
I and/or attorneys working under my supervision have conducted such
investigations of laws and regulations as I have deemed necessary or appropriate
for the purpose of rendering the opinions hereinafter expressed.
The opinions expressed below are based on the following assumptions:
(a) The combined Registration Statement on Form S-3 and
Post-Effective Amendment No. 1 to Registration Statement No. 333-65261(the
"Registration Statement") filed by the Company with respect to the Debt
Securities will become effective;
(b) The proposed transactions contemplated by the Registration
Statement will be carried out on the basis set forth therein and in
conformity with the authorizations, approvals, consents or exemptions
under the securities laws of various states and other jurisdictions of the
United States;
(c) Prior to the issuance of any series of Debt Securities, an
Indenture relating thereto will have been executed and delivered by the
Company, and the Board of Directors of the Company, a committee thereof or
the Sale and Pricing Committee of the Company ("Committee"), pursuant to
delegated authority from such Board, will have authorized the issuance of,
and established the terms of such series of Debt Securities;
(d) Each Indenture will have been qualified in accordance with the
provisions of the Trust Indenture Act of 1939, as amended.
Based upon the foregoing and subject to the limitations herein, I am of
the opinion that:
1. The Company is a corporation duly organized and validly existing
and authorized to exercise its corporate powers, rights and privileges
under the laws of the State of New Jersey.
2. When properly executed, authenticated and delivered as provided
in the respective Indenture, the Debt Securities will be legally issued,
valid and binding obligations of the Company.
I express no opinions as to matters of law in jurisdictions other then the
State of New Jersey. My opinions are rendered only with respect to the laws of
the State of New Jersey which are currently in effect.
This opinion does not cover the necessity of filings under the provisions
of securities laws of any state in which the Debt Securities may be sold.
The opinions set forth above are subject, as to enforcement, to (i)
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws relating
to or affecting the enforcement of creditors' rights generally, (ii) general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (iii) provisions of law that require that a
judgment for money damages rendered by a court in the United States be expressed
only in United States dollars.
I hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement and to the references to me under the heading "Legal
Opinions" in the Prospectus contained therein.
Very truly yours,
/s/ James T. Foran
----------------------------
James T. Foran
Associate General Counsel
Exhibit 23-1
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration Statement of
Public Service Enterprise Group Incorporated on Form S-3 of our report dated
February 12, 1999 appearing in the 1998 Annual Report on Form 10-K of Public
Service Enterprise Group Incorporated and to reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
May 21, 1999
Exhibit 24
POWER OF ATTORNEY
Each Director of Public Service Enterprise Group Incorporated whose
signature appears below hereby appoints Robert C. Murray the agent for service
named in this Registration Statement, and James T. Foran, Esq. as
attorney-in-fact, to execute in the name of each such person and to file with
the Securities and Exchange Commission this Registration Statement and any and
all additional amendments, including post-effective amendments to this
Registration Statement.
Signature Title Date
- --------- ----- ----
/s/ Lawrence R. Codey
- ------------------------------
Lawrence R. Codey Director May 18, 1999
/s/ Ernest H. Drew
- ------------------------------
Ernest H. Drew Director May 18, 1999
/s/ T.J. Dermot Dunphy
- ------------------------------
T.J. Dermot Dunphy Director May 18, 1999
/s/ E. James Ferland
- ------------------------------
E. James Ferland Director May 18, 1999
/s/ Raymond V. Gilmartin
- ------------------------------
Raymond V. Gilmartin Director May 18, 1999
/s/ Conrad K. Harper
- ------------------------------
Conrad K. Harper Director May 18, 1999
/s/ Irwin Lerner
- ------------------------------
Irwin Lerner Director May 18, 1999
/s/ Marilyn M. Pfaltz
- ------------------------------
Marilyn M. Pfaltz Director May 18, 1999
/s/ Forrest J. Remick
- ------------------------------
Forrest J. Remick Director May 18, 1999
/s/ Richard J. Swift
- ------------------------------
Richard J. Swift Director May 18, 1999
Exhibit 25-1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS A TRUSTEE
--------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
--------
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 South College Street, Charlotte, North Carolina 28288-0630
(Address of Principal Executive Offices) (Zip Code)
--------
(Name, address and telephone number of agent for service)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(Name of Obligor)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer
Identification No.)
80 Park Plaza, Newark, New Jersey 07101
(Address of Principal Executive Offices) (Zip Code)
--------
Senior Debt Securities
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Richmond, VA
23219 Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities of
the trustee:
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Item 4. Trusteeship under Other Indentures:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or representative
of the obligor or of any underwriter for the obligor, identify each such person
having any such connection and state the nature of each such connection.
Not Applicable
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Owner Title of Class Amount owned Percentage of Voting
Beneficially securities represented
By amount given in Col. C
- --------------------------------------------------------------------------------
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Owner Title of Class Amount owned Percentage of Voting
Beneficially securities represented
By amount given in Col. C
- --------------------------------------------------------------------------------
Not Applicable
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for the obligations in default by
the trustee.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Title of Class Whether the Amount owned Percentage of class
Securities are beneficially or represented by
Voting or held as collateral amount given in Col. C.
nonvoting Security for
Securities obligations in
default by Trustee
- --------------------------------------------------------------------------------
Not Applicable
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Amount Amount owned Percentage of class
Issuer and outstanding beneficially or represented by
Title of Class held as collateral amount given in Col. C.
Security for
obligations in
default by Trustee
- --------------------------------------------------------------------------------
Not Applicable
2
<PAGE>
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Amount Amount owned Percentage of class
Issuer and outstanding beneficially or represented by
Title of Class held as collateral amount given in Col. C.
Security for
obligations in
default by Trustee
- --------------------------------------------------------------------------------
Not Applicable
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Amount Amount owned Percentage of class
Issuer and outstanding beneficially or represented by
Title of Class held as collateral amount given in Col. C.
Security for
obligations in
default by Trustee
- --------------------------------------------------------------------------------
Not Applicable
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information: As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A. Col. B. Col. C.
- --------------------------------------------------------------------------------
Nature of indebtedness Amount outstanding Date due
- --------------------------------------------------------------------------------
Not Applicable
3
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Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not Applicable
Item 16. Lists of Exhibits.
1* -Copy of Articles of Association of the Trustee as now in
effect.
2 -No certificate of authority of the Trustee to commence
business is furnished
since this authority is contained in the Articles of
Association of the Trustee.
3* -Copy of the authorization of the Trustee to exercise
corporate trust powers.
4 -Copy of the existing By-Laws of the Trustee, as now in
effect.
5 -Not applicable.
6* -The consent of the Trustee required by Section 321 (b) of the Act.
7 -A copy of the latest report of Condition of the Trustee
published pursuant to the law or the requirements of its
supervising or examining authority.
8 -Not Applicable
9 -Not Applicable
- ----------
*Exhibits thus designated have heretofore been filed with the
Securities and Exchange Commission, have not been amended since filing and are
incorporated herein by reference (see Exhibit T-1 Registration Number
333-47985).
In answering any item in this statement of eligibility and qualification
which relates to matters peculiarly within the knowledge of the obligor or of
its directors or officers, or an underwriter for the obligor, the undersigned,
First Union National Bank, has relied upon information furnished to it by the
obligor or such underwriter.
4
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the Town of Morristown, and State of New Jersey, on the 11th
day of May, 1999.
First Union National Bank
(Trustee)
(CORPORATE SEAL)
By:/s/ Frank Gallagher
--------------------
Vice President
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<PAGE>
Exhibit T-6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, and in connection with the proposed issue of Public Service Enterprise
Group, Incorporated, we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Frank Gallagher
-------------------
Vice President
Morristown, NJ
May 11, 1999
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association , at the close of business on March 31, 1999, published in
response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161. Charter Number 33869 Comptroller of the Currency
Northeastern District. Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin.......... 11,400,000
Interest-bearing balances................................... 454,000
Securities.................................................... /////////
Hold-to-maturity securities................................. 1,873,000
Available-for-sale securities............................... 38,611,000
Federal funds sold and securities purchased under agreements
to resell 3,359,000
Loans and lease financing receivables:
Loan and leases, net of unearned income.............. 131,165,000
LESS: Allowance for loan and lease losses............ 1,812,000
LESS: Allocated transfer risk reserve................ 0
Loans and leases, net of unearned income, allowance,
and reserve.......................................... 129,353,000
Assets held in trading accounts............................... 4,725,000
Premises and fixed assets (including capitalized leases)...... 3,218,000
Other real estate owned....................................... 126,000
Investment in unconsolidated subsidiaries and associated
companies................................................... 321,000
Customer's liability to this bank on acceptances outstanding.. 769,000
Intangible assets............................................. 5,285,000
Other assets.................................................. 9,176,000
Total assets.................................................. 208,670,000
LIABILITIES
Deposits:
In domestic offices.................................. 128,512,000
Noninterest-bearing................................ 21,581,000
Interest-bearing................................... 106,931,000
In foreign offices, Edge and Agreement subsidiaries,
and IBFs............................................. 9,452,000
Noninterest-bearing................................ 553,000
Interest-bearing................................... 8,899,000
Federal funds purchased and securities sold under agreements
to repurchase .................................... 19,561,000
Demand notes issued to the U.S. Treasury...................... 500,000
Trading liabilities........................................... 3,585,000
Other borrowed money:(includes mortgage indebtness and
obligations under capitalized leases).
With original maturity of one year or less........... 12,891,000
With original maturity of more than one year......... 3,583,000
With original maturity of more than three years...... 774,000
Mortgage indebtedness and obligations under capitalized leases
Bank's liability on acceptances executed and outstanding..... 769,000
Subordinated notes and debentures............................ 4,045,000
Other liabilities............................................ 7,306,000
Total liabilities............................................ 190,978,0000
Limited-life preferred stock and related surplus............. 0
<PAGE>
EQUITY CAPITAL
Perpetual preferred stock and related surplus................. 161,000
Common Stock.................................................. 455,000
Surplus....................................................... 13,291,000
Undivided profits and capital reserves........................ 3,768,000
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 22,000
Cumulative foreign currency translation adjustments........... (5,000)
Total equity capital.......................................... 17,692,000
Total liabilities, limited-life preferred stock and equity....
capital..................................................... 208,670,000
<PAGE>
BY-LAWS OF
FIRST UNION NATIONAL BANK
Charter No. 1
Effective May 18, 1998
<PAGE>
BY-LAWS OF
FIRST UNION NATIONAL BANK
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The annual meeting of the shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday of April in
each year, commencing with the year 1998, except that the Board of Directors
may, from time to time and upon passage of a resolution specifically setting
forth its reasons, set such other date for such meeting during the month of
April as the Board of Directors may deem necessary or appropriate; provided,
however, that if an annual meeting would otherwise fall on a legal holiday, then
such annual meeting shall be held on the second business day following such
legal holiday. The holders of a majority of the outstanding shares entitled to
vote which are represented at any meeting of the shareholders may choose persons
to act as Chairman and as Secretary of the meeting.
Section 1.2 Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the Board of Directors or by any three or more shareholders owning,
in the aggregate, not less than ten percent of the stock of the Association.
Every such special meeting, unless otherwise provided by law, shall be called by
mailing, postage prepaid, not less than ten days prior to the date fixed for
such meeting, to each shareholder at his address appearing on the books of the
Association, a notice stating the purpose of the meeting.
Section 1.3 Nominations for Directors. Nominations for election to the
Board of Directors may be made by the Board of Directors or by any stockholder
of any outstanding class of capital stock of the bank entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the bank, shall be made in writing and shall be delivered
or mailed to the President of the Bank and to the Comptroller of the Currency,
Washington, D. C., not less than 14 days nor more than 50 days prior to any
meeting of stockholders called for the election of directors, provided however,
that if less than 21 days' notice of such meeting is given to
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shareholders, such nomination shall be mailed or delivered to the President of
the Bank and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting was
mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder: (a) the name and address of each proposed
nominee; (b) the principal occupation of each proposed nominee; (c) the total
number of shares of capital stock of the bank that will be voted for each
proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
Section 1.4 Judges of Election. The Board may at any time appoint from
among the shareholders three or more persons to serve as Judges of Election at
any meeting of shareholders; to act as judges and tellers with respect to all
votes by ballot at such meeting and to file with the Secretary of the meeting a
Certificate under their hands, certifying the result thereof.
Section 1.5 Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such meeting. Proxies
shall be dated and shall be filed with the records of the meeting.
Section 1.6 Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors (hereinafter
referred to as the "Board"), shall have power to manage and administer the
business and affairs of the Association. Except as expressly limited by law, all
corporate powers of the Association shall be vested in and may be exercised by
said Board.
3
<PAGE>
Section 2.2 Number. The Board shall consist of not less than five nor more
than twenty-five directors, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a majority
of the full Board or by resolution of the shareholders at any meeting thereof;
provided, however, that a majority of the full Board of Directors may not
increase the number of directors to a number which, (1) exceeds by more than two
the number of directors last elected by shareholders where such number was
fifteen or less, and (2) to a number which exceeds by more than four the number
of directors last elected by shareholders where such number was sixteen or more,
but in no event shall the number of directors exceed twenty-five.
Section 2.3 Organization Meeting. The Secretary of the meeting upon
receiving the certificate of the judges, of the result of any election, shall
notify the directors-elect of their election and of the time at which they are
required to meet at the Main Office of the Association for the purpose of
organizing the new Board and electing and appointing officers of the Association
for the succeeding year. Such meeting shall be held as soon thereafter as
practicable. If, at the time fixed for such meeting, there shall not be a quorum
present, the directors present may adjourn the meeting from time to time, until
a quorum is obtained.
Section 2.4 Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place and time as may be designated by resolution of the
Board of Directors. Upon adoption of such resolution, no further notice of such
meeting dates or the places or times thereof shall be required. Upon the failure
of the Board of Directors to adopt such a resolution, regular meetings of the
Board of Directors shall be held, without notice, on the third Tuesday in
February, April, June, August, October and December, commencing with the year
1997, at the main office or at such other place and time as may be designated by
the Board of Directors. When any regular meeting of the Board would otherwise
fall on a holiday, the meeting shall be held on the next business day unless the
Board shall designate some other day.
Section 2.5 Special Meetings. Special meetings of the Board of Directors
may be called by the President of the Association, or at the request of three
(3) or more directors. Each member of the Board of Directors shall be given
notice stating the time and place, by telegram, letter, or in person, of each
such special meeting.
Section 2.6 Quorum. A majority of the directors shall constitute a quorum
at any meeting, except when otherwise provided by law; but a less
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number may adjourn any meeting, from time to time, and the meeting may be held,
as adjourned, without further notice.
Section 2.7 Vacancies. When any vacancy occurs among the directors, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose.
Section 2.8 Advisory Boards. The Board of Directors may appoint Advisory
Boards for each of the states in which the Association conducts operations. Each
such Advisory Board shall consist of as many persons as the Board of Directors
may determine. The duties of each Advisory Board shall be to consult and advise
with the Board of Directors and senior officers of the Association in such state
with regard to the best interests of the Association and to perform such other
duties as the Board of Directors may lawfully delegate. The senior officer in
such state, or such officers as directed by such senior officer, may appoint
advisory boards for geographic regions within such state and may consult with
the State Advisory Boards prior to such appointments.
ARTICLE III
Committees of the Board
Section 3.1 The Board of Directors, by resolution adopted by a majority of
the number of directors fixed by these By-Laws, may designate two or more
directors to constitute an Executive Committee and other committees, each of
which, to the extent authorized by law and provided in such resolution, shall
have and may exercise all of the authority of the Board of Directors and the
management of the Association. The designation of any committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability imposed
upon it or any member of the Board of Directors by law. The Board of Directors
reserves to itself alone the power to act on (1) dissolution, merger or
consolidation, or disposition of substantially all corporate property, (2)
designation of committees or filling vacancies on the Board of Directors or on a
committee of the Board (except as hereinafter provided), (3) adoption, amendment
or repeal of By-laws, (4) amendment or repeal of any resolution of the Board
which by its terms is not so amendable or repealable, and (5) declaration of
dividends, issuance of stock, or recommendations to stockholders of any action
requiring stockholder approval.
The Board of Directors or the Chairman of the Board of Directors of the
Association may change the membership of any committee at any time, fill
5
<PAGE>
vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors may
fix such committee's rules of procedure. All action by any committee shall be
reported to the Board of Directors at a meeting succeeding such action, except
such actions as the Board may not require to be reported to it in the resolution
creating any such committee. Any action by any committee shall be subject to
revision, alteration, and approval by the Board of Directors, except to the
extent otherwise provided in the resolution creating such committee; provided,
however, that no rights or acts of third parties shall be affected by any such
revision or alteration.
ARTICLE IV
Officers and Employees
Section 4.1 Officers. The officers of the Association may be a Chairman of
the Board, a Vice Chairman of the Board, one or more Chairmen or Vice Chairmen
(who shall not be required to be directors of the Association), a President, one
or more Vice Presidents, a Secretary, a Cashier or Treasurer, and such other
officers, including officers holding similar or equivalent titles to the above
in regions, divisions or functional units of the Association, as may be
appointed by the Board of Directors. The Chairman of the Board and the President
shall be members of the Board of Directors. Any two or more offices may be held
by one person, but no officer shall sign or execute any document in more than
one capacity.
Section 4.2 Election, Term of Office, and Qualification. Each officer
shall be chosen by the Board of Directors and shall hold office until the annual
meeting of the Board of Directors held next after his election or until his
successor shall have been duly chosen and qualified, or until his death, or
until he shall resign, or shall have been disqualified, or shall have been
removed from office.
Section 4.2(a) Officers Acting as Assistant Secretary. Notwithstanding
Section 1 of these By-laws, any Senior Vice President, Vice President, or
Assistant Vice President shall have, by virtue of his office, and by authority
of the By-laws, the authority from time to time to act as an Assistant Secretary
of the Bank, and to such extent, said officers are appointed to the office of
Assistant Secretary.
6
<PAGE>
Section 4.3 Chief Executive Officer. The Board of Directors shall
designate one of its members to be the President of this Association, and the
officer so designated shall be an ex officio member of all committees of the
Association except the Examining Committee, and its Chief Executive Officer
unless some other officer is so designated by the Board of Directors.
Section 4.4 Duties of Officers. The duties of all officers shall be
prescribed by the Board of Directors. Nevertheless, the Board of Directors may
delegate to the Chief Executive Officer the authority to prescribe the duties of
other officers of the corporation not inconsistent with law, the charter, and
these By-laws, and to appoint other employees, prescribe their duties, and to
dismiss them. Notwithstanding such delegation of authority, any officer or
employee also may be dismissed at any time by the Board of Directors.
Section 4.5 Other Employees. The Board of Directors may appoint from time
to time such tellers, vault custodians, bookkeepers, and other clerks, agents,
and employees as it may deem advisable for the prompt and orderly transaction of
the business of the Association, define their duties, fix the salary to be paid
them, and dismiss them. Subject to the authority of the Board of Directors, the
Chief Executive Officer or any other officer of the Association authorized by
him, may appoint and dismiss all such tellers, vault custodians, bookkeepers and
other clerks, agents, and employees, prescribe their duties and the conditions
of their employment, and from time to time fix their compensation.
Section 4.6 Removal and Resignation. Any officer or employee of the
Association may be removed either with or without cause by the Board of
Directors. Any employee other than an officer elected by the Board of Directors
may be dismissed in accordance with the provisions of the preceding Section 4.5.
Any officer may resign at any time by giving written notice to the Board of
Directors or to the Chief Executive Officer of the Association. Any such
resignation shall become effective upon its being accepted by the Board of
Directors, or the Chief Executive Officer.
ARTICLE V
Fiduciary Powers
Section 5.1 Capital Management Group. There shall be an area of this
Association known as the Capital Management Group which shall be responsible for
the exercise of the fiduciary powers of this Association. The Capital Management
Group shall consist of four service areas: Fiduciary Services, Retail Services,
Investments and Marketing. The Fiduciary Services unit shall consist of
7
<PAGE>
personal trust, employee benefits, corporate trust and operations. The General
Office for the Fiduciary Services unit shall be located in Charlotte, N.C., with
City Trust Offices located in such cities within the State of North Carolina as
designated by the Board of Directors.
Section 5.2 Trust Officers. There shall be a General Trust Officer of this
Association whose duties shall be to manage, supervise and direct all the
activities of the Capital Management Group. Further, there shall be one or more
Senior Trust Officers designated to assist the General Trust Officer in the
performance of his duties. They shall do or cause to be done all things
necessary or proper in carrying out the business of the Capital Management Group
in accordance with provisions of applicable law and regulation.
Section 5.3 Capital Management/General Trust Committee. There shall be a
Capital Management/General Trust Committee composed of not less than four (4)
members of the Board of Directors or officers of this Association who shall be
appointed annually or from time to time by the Board of Directors of the
Association. The General Trust Officer shall serve as an ex-officio member of
the Committee. Each member shall serve until his successor is appointed. The
Board of Directors or the Chairman of the Board may change the membership of the
Capital Management/General Trust Committee at any time, fill vacancies therein,
or discharge any member thereof with or without cause at any time. The Committee
shall counsel and advise on all matters relating to the business or affairs of
the Capital Management Group and shall adopt overall policies for the conduct of
the business of the Capital Management Group including but not limited to:
general administration, investment policies, new business development, and
review for approval of major assignments of functional responsibilities. The
Committee shall meet at least quarterly or as called for by its Chairman or any
three (3) members of the Committee. A quorum shall consist of three (3) members.
In carrying out its responsibilities, the Capital Management/General Trust
Committee shall review the actions of all officers, employees and committees
utilized by this Association in connection with the activities of the Capital
Management Group and may assign the administration and performance of any
fiduciary powers or duties to any of such officers or employees or to the
Investment Policy Committee, Personal Trust Administration Committee, Account
Review Committee, Corporate and Institutional Accounts Committee, or any other
committees it shall designate. One of the methods to be used in the review
process will be the thorough scrutiny of the Report of Examination by the Office
of the Comptroller of the Currency and the reports of the Audit Division of
First Union Corporation, as they relate to the activities of the Capital
Management Group. These reviews shall be in addition to reviews of such reports
by the Audit Committee of the Board of Directors. The Chairman of the Capital
Management/General Trust
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<PAGE>
Committee shall be appointed by the Chairman of the Board of Directors. He shall
cause to be recorded in appropriate minutes all actions taken by the Committee.
The minutes shall be signed by its Secretary and approved by its Chairman.
Further, the Committee shall summarize all actions taken by it and shall submit
a report of its proceedings to the Board of Directors at its next regularly
scheduled meeting following a meeting of the Capital Management/General Trust
Committee. As required by Section 9.7 of Regulation 9 of the Comptroller of the
Currency, the Board of Directors retains responsibility for the proper exercise
of the fiduciary powers of this Association.
The Fiduciary Services unit of the Capital Management Group will maintain
a list of securities approved for investment in fiduciary accounts and will from
time to time provide the Capital Management/General Trust Committee with current
information relative to such list and also with respect to transactions in other
securities not on such list. It is the policy of this Association that members
of the Capital Management/General Trust Committee should not buy, sell or trade
in securities which are on such approved list or in any other securities in
which the Fiduciary Services unit has taken, or intends to take, a position in
fiduciary accounts in any circumstances in which any such transaction could be
viewed as a possible conflict of interest or could constitute a violation of
applicable law or regulation. Accordingly, if any such securities are owned by
any member of the Capital Management/General Trust Committee at the time of
appointment to such Committee, the Capital Management Group shall be promptly so
informed in writing. If any member of the Capital Management/General Trust
Committee intends to buy, sell, or trade in any such securities while serving as
a member of the Committee, he should first notify the Capital Management Group
in order to make certain that any proposed transaction will not constitute a
violation of this policy or of applicable law or regulation.
Section 5.4 Investment Policy Committee. There shall be an Investment
Policy Committee composed of not less than seven (7) officers and/or employees
of this Association who shall be appointed annually or from time to time by the
Board of Directors. Each member shall serve until his successor is appointed.
Meetings shall be called by the Chairman or any two (2) members of the
Committee. A quorum shall consist of five (5) members. The Investment Policy
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General Trust Committee. All actions
taken by the Investment Policy Committee shall be recorded in appropriate
minutes, signed by the Secretary thereof, approved by its Chairman and submitted
to the Capital Management/General Trust Committee at its next ensuing regular
meeting for its review and approval.
9
<PAGE>
Section 5.5 Personal Trust Administration Committee. There shall be a
Personal Trust Administration Committee composed of not less than five (5)
officers, who shall be appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any three (3) members of the Committee. A
quorum shall consist of three (3) members. The Personal Trust Administration
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General Trust Committee. All action
taken by the Personal Trust Administration Committee shall be recorded in
appropriate minutes signed by the Secretary thereof, approved by its Chairman,
and submitted to the Capital Management/General Trust Committee at its next
ensuing regular meeting for its review and approval.
Section 5.6 Account Review Committee. There shall be an Account Review
Committee composed of not less than four (4) officers and/or employees of this
Association, who shall be appointed annually or from time to time by the Board
of Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any two (2) members of the Committee. A
quorum shall consist of three (3) members. The Account Review Committee shall
exercise such fiduciary powers and perform such duties as may be assigned to it
by the Capital Management/General Trust Committee. All actions taken by the
Account Review Committee shall be recorded in appropriate minutes, signed by the
Secretary thereof, approved by its Chairman and submitted to the Capital
Management/General Trust Committee at its next ensuing regular meeting for its
review and approval.
Section 5.7 Corporate and Institutional Accounts Committee. There shall be
a Corporate and Institutional Accounts Committee composed of not less than five
(5) officers and/or employees of this Association, who shall be appointed
annually, or from time to time, by the Capital Management/General Trust
Committee and approved by the Board of Directors. Meetings may be called by the
Chairman or any two (2) members of the Committee. A quorum shall consist of
three (3) members. The Corporate and Institutional Accounts Committee shall
exercise such fiduciary powers and duties as may be assigned to it by the
General Trust Committee. All actions taken by the Corporate and Institutional
Accounts Committee shall be recorded in appropriate minutes, signed by the
Secretary thereof, approved by its Chairman and made available to the General
Trust Committee at its next ensuing regular meeting for its review and approval.
10
<PAGE>
ARTICLE VI
Stock and Stock Certificates
Section 6.1 Transfers. Shares of stock shall be transferable on the books
of the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his shares, succeed to all rights and liabilities of the
prior holder of such shares.
Section 6.2 Stock Certificates. Certificates of stock shall bear the
signature of the Chairman, the Vice Chairman, the President, or a Vice President
(which may be engraved, printed, or impressed), and shall be signed manually or
by facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant
Cashier, or any other officer appointed by the Board of Directors for that
purpose, to be known as an Authorized Officer, and the seal of the Association
shall be engraved thereon. Each certificate shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
ARTICLE VII
Corporate Seal
Section 7.1 The President, the Cashier, the Secretary, or any Assistant
Cashier, or Assistant Secretary, or other officer thereunto designated by the
Board of Directors shall have authority to affix the corporate seal to any
document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form.
ARTICLE VIII
Miscellaneous Provisions
Section 8.1 Fiscal Year. The fiscal year of the Association shall be the
calendar year.
Section 8.2 Execution of Instruments. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, notices,
applications, schedules, accounts, affidavits, bonds, undertakings, proxies, and
other
11
<PAGE>
instruments or documents may be signed, executed, acknowledged, verified,
delivered or accepted in behalf of the Association by the Chairman of the Board,
the Vice Chairman of the Board, any Chairman or Vice Chairman, the President,
any Vice President or Assistant Vice President, the Secretary or any Assistant
Secretary, the Cashier or Treasurer or any Assistant Cashier or Assistant
Treasurer, or any officer holding similar or equivalent titles to the above in
any regions, divisions or functional units of the Association, or, if in
connection with the exercise of fiduciary powers of the Association, by any of
said officers or by any Trust Officer or Assistant Trust Officer (or equivalent
titles); provided, however, that where required, any such instrument shall be
attested by one of said officers other than the officer executing such
instrument. Any such instruments may also be executed, acknowledged, verified,
delivered or accepted in behalf of the Association in such other manner and by
such other officers as the Board of Directors may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of these
By-laws.
Section 8.3 Records. The Articles of Association, the By-laws, and the
proceedings of all meetings of the shareholders, the Board of Directors,
standing committees of the Board, shall be recorded in appropriate minute books
provided for the purpose. The minutes of each meeting shall be signed by the
Secretary, Cashier, or other officer appointed to act as Secretary of the
meeting.
ARTICLE IX
By-laws
Section 9.1 Inspection. A copy of the By-laws, with all amendments
thereto, shall at all times be kept in a convenient place at the Head Office of
the Association, and shall be open for inspection to all shareholders, during
banking hours.
Section 9.2 Amendments. The By-laws may be amended, altered or repealed,
at any regular or special meeting of the Board of Directors, by a vote of a
majority of the whole number of Directors.
12
<PAGE>
Exhibit A
First Union National Bank
Article X
Emergency By-laws
In the event of an emergency declared by the President of the United
States or the person performing his functions, the officers and employees of
this Association will continue to conduct the affairs of the Association under
such guidance from the directors or the Executive Committee as may be available
except as to matters which by statute require specific approval of the Board of
Directors and subject to conformance with any applicable governmental directives
during the emergency.
OFFICERS PRO TEMPORE AND DISASTER
Section 1. The surviving members of the Board of Directors or the
Executive Committee shall have the power, in the absence or disability of any
officer, or upon the refusal of any officer to act, to delegate and prescribe
such officer's powers and duties to any other officer, or to any director, for
the time being.
Section 2. In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of this
Association by its directors and officers as contemplated by these By-laws, any
two or more available members of the then incumbent Executive Committee shall
constitute a quorum of that Committee for the full conduct and management of the
affairs and business of the Association in accordance with the provisions of
Article II of these By-laws; and in addition, such Committee shall be empowered
to exercise all of the powers reserved to the General Trust Committee under
Section 5.3 of Article V hereof. In the event of the unavail- ability, at such
time, of a minimum of two members of the then incumbent Executive Committee, any
three available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Association in
accordance with the foregoing provisions of this section. This By-law shall be
subject to implementation by resolutions of the Board of Directors passed from
time to time for that purpose, and any provisions of these By-laws (other than
this section) and any resolutions which are contrary to the provisions of this
section or to the provisions of any such implementary
13
<PAGE>
resolutions shall be suspended until it shall be determined by an interim
Executive Committee acting under this section that it shall be to the advantage
of this Association to resume the conduct and management of its affairs and
business under all of the other provisions of these By-laws.
Officer Succession
BE IT RESOLVED, that if consequent upon war or warlike damage or disaster,
the Chief Executive Officer of this Association cannot be located by the then
acting Head Officer or is unable to assume or to continue normal executive
duties, then the authority and duties of the Chief Executive Officer shall,
without further action of the Board of Directors, be automatically assumed by
one of the following persons in the order designated:
Chairman
President
Division Head/Area Administrator - Within this officer class, officers
shall take seniority on the basis of length of service in such office
or, in the event of equality, length of service as an officer of the
Association.
Any one of the above persons who in accordance with this resolution
assumes the authority and duties of the Chief Executive Officer shall continue
to serve until he resigns or until five-sixths of the other officers who are
attached to the then acting Head Office decide in writing he is unable to
perform said duties or until the elected Chief Executive Officer of this
Association, or a person higher on the above list, shall become available to
perform the duties of Chief Executive Officer of the Association.
BE IT FURTHER RESOLVED, that anyone dealing with this Association may
accept a certification by any three officers that a specified individual is
acting as Chief Executive Officer in accordance with this resolution; and that
anyone accepting such certification may continue to consider it in force until
notified in writing of a change, said notice of change to carry the signatures
of three officers of the Association.
Alternate Locations
The offices of the Association at which its business shall be conducted
shall be the main office thereof in each city which is designated as a City
Office (and branches, if any), and any other legally authorized location which
may be leased or acquired by this Association to carry on its business. During
an emergency resulting in any authorized place of business of this Association
being unable to function, the business ordinarily conducted at such location
shall be relocated
14
<PAGE>
elsewhere in suitable quarters, in addition to or in lieu of the locations
heretofore mentioned, as may be designated by the Board of Directors or by the
Executive Committee or by such persons as are then, in accordance with
resolutions adopted from time to time by the Board of Directors dealing with the
exercise of authority in the time of such emergency, conducting the affairs of
this Association. Any temporarily relocated place of business of this
Association shall be returned to its legally authorized location as soon as
practicable and such temporary place of business shall then be discontinued.
Acting Head Offices
BE IT RESOLVED, that in case of and provided because of war or warlike
damage or disaster, the General Office of this Association, located in
Charlotte, North Carolina, is unable temporarily to continue its functions, the
Raleigh office, located in Raleigh, North Carolina, shall automatically and
without further action of this Board of Directors, become the "Acting Head
Office of this Association";
BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage or
disaster, both the General Office of this Association and the said Raleigh
Office of this Association are unable to carry on their functions, then and in
such case, the Asheville Office of this Association, located in Asheville, North
Carolina, shall, without further action of this Board of Directors, become the
"Acting Head Office of this Association"; and if neither the Raleigh Office nor
the Asheville Office can carry on their functions, then the Greensboro Office of
this Association, located in Greensboro, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association"; and if neither the Raleigh Office, the Asheville Office, nor the
Greensboro Office can carry on their functions, then the Lumberton Office of
this Association, located in Lumberton, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association". The Head Office shall resume its functions at its legally
authorized location as soon as practicable.
15
Exhibit 25-2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS A TRUSTEE
--------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
--------
FIRST UNION NATIONAL BANK
(Name of Trustee)
22-1147033
(Jurisdiction of Incorporation or (I.R.S. Employer
Organization if not a U.S. National Bank) Identification No.)
301 South College Street, Charlotte, North Carolina 28288-0630
(Address of Principal Executive Offices) (Zip Code)
--------
(Name, address and telephone number of agent for service)
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(Name of Obligor)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer
Identification No.)
80 Park Plaza, Newark, New Jersey 07101
(Address of Principal Executive Offices) (Zip Code)
--------
Subordinated Debt Securities
(Title of Indenture Securities)
<PAGE>
GENERAL
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is subject:
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Richmond, VA
23219 Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities of
the trustee:
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Item 4. Trusteeship under Other Indentures:
If the trustee is a trustee under another indenture under which any other
securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, furnish the following information:
(a) Title of the securities outstanding under each such other indenture.
Not Applicable
(b) A brief statement of the facts relied upon as a basis for the claim
that no conflicting interest within the meaning of Section 310(b)(1) of the Act
arises as a result of the trusteeship under any such other indenture, including
a statement as to how the indenture securities will rank as compared with the
securities issued under such other indenture.
Not Applicable.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
If the trustee or any of the directors or executive officers of the
trustee is a director, officer, partner, employee, appointee, or representative
of the obligor or of any underwriter for the obligor, identify each such person
having any such connection and state the nature of each such connection.
Not Applicable
<PAGE>
Item 6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by the obligor and each director, partner and
executive officer of the obligor.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Owner Title of Class Amount owned Percentage of Voting
Beneficially securities represented
By amount given in Col. C
- --------------------------------------------------------------------------------
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Furnish the following information as to the voting securities of the
trustee owned beneficially by each underwriter for the obligor and each
director, partner, and executive officer of each such underwriter.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Owner Title of Class Amount owned Percentage of Voting
Beneficially securities represented
By amount given in Col. C
- --------------------------------------------------------------------------------
Not Applicable
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Furnish the following information as to securities of the obligor owned
beneficially or held as collateral security for the obligations in default by
the trustee.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Owner Whether the Amount owned Percentage of class
Securities are beneficially or represented by
Voting or held as collateral amount given in Col. C.
nonvoting Security for
Securities obligations in
default by Trustee
- --------------------------------------------------------------------------------
Not Applicable
Item 9. Securities of the Underwriters Owned or Held by the Trustee.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of an underwriter for the obligor, furnish
the following information as to each class of securities of such underwriter any
of which are so owned or held by the trustee.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Amount Amount owned Percentage of class
Issuer and outstanding beneficially or represented by
Title of Class held as collateral amount given in Col. C.
Security for
obligations in
default by Trustee
- --------------------------------------------------------------------------------
Not Applicable
2
<PAGE>
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default voting securities of a person who, to the knowledge of
the trustee (1) owns 10 percent or more of the voting securities of the obligor
or (2) is an affiliate, other than a subsidiary, of the obligor, furnish the
following information as to the voting securities of such person.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Amount Amount owned Percentage of class
Issuer and Outstanding beneficially or represented by
Title of Class held as collateral amount given in Col. C.
Security for
obligations in
default by Trustee
- --------------------------------------------------------------------------------
Not Applicable
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
If the trustee owns beneficially or holds as collateral security for
obligations in default any securities of a person who, to the knowledge of the
trustee, owns 50 percent or more of the voting securities of the obligor,
furnish the following information as to each class of securities of such person
any of which are so owned or held by the Trustee.
As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A Col. B Col. C Col. D.
- --------------------------------------------------------------------------------
Name of Amount Amount owned Percentage of class
Issuer and Outstanding beneficially or represented by
Title of Class held as collateral amount given in Col. C.
Security for
obligations in
default by Trustee
- --------------------------------------------------------------------------------
Not Applicable
Item 12. Indebtedness of the Obligor to the Trustee.
Except as noted in the instructions, if the obligor is indebted to the
trustee, furnish the following information: As of March 31, 1999
- --------------------------------------------------------------------------------
Col. A. Col. B. Col. C.
- --------------------------------------------------------------------------------
Nature of indebtedness Amount outstanding Date due
- --------------------------------------------------------------------------------
Not Applicable
3
<PAGE>
Item 13. Defaults by the Obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None
(b) If the trustee is a trustee under another indenture under which any
other securities, or certificates of interest or participation in any other
securities, of the obligor are outstanding, or is trustee for more than one
outstanding series of securities under the indenture, state whether there has
been default under any such indenture or series, identify the indenture or
series affected, and explain the nature of any such default.
None
Item 14. Affiliations with the Underwriters.
If any underwriter is an affiliate of the trustee, describe each such
affiliation.
Not Applicable
Item 15. Foreign Trustee.
Identify the order or rule pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to be qualified
under the Act.
Not Applicable
Item 16. Lists of Exhibits.
1* -Copy of Articles of Association of the Trustee as now in
effect.
2 -No certificate of authority of the Trustee to commence
business is furnished
since this authority is contained in the Articles of
Association of the Trustee.
3* -Copy of the authorization of the Trustee to exercise
corporate trust powers.
4 -Copy of the existing By-Laws of the Trustee, as now in
effect.
5 -Not applicable.
6* -The consent of the Trustee required by Section 321 (b) of the Act.
7 -A copy of the latest report of Condition of the Trustee
published pursuant to the law or the requirements of its
supervising or examining authority.
8 -Not Applicable
9 -Not Applicable
- ----------
*Exhibits thus designated have heretofore been filed with the
Securities and Exchange Commission, have not been amended since filing and are
incorporated herein by reference (see Exhibit T-1 Registration Number
333-47985).
In answering any item in this statement of eligibility and qualification
which relates to matters peculiarly within the knowledge of the obligor or of
its directors or officers, or an underwriter for the obligor, the undersigned,
First Union National Bank, has relied upon information furnished to it by the
obligor or such underwriter.
4
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, First Union National Bank, a national banking association organized and
existing under the laws of the United States, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the Town of Morristown, and State of New Jersey, on the 11th
day of May, 1999.
First Union National Bank
(Trustee)
(CORPORATE SEAL)
By:/s/ Frank Gallagher
--------------------
Vice President
5
<PAGE>
Exhibit T-6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321 (b) of the Trust Indenture Act
of 1939, and in connection with the proposed issue of Public Service Enterprise
Group, Incorporated, we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK
By: /s/ Frank Gallagher
-------------------
Vice President
Morristown, NJ
May 11, 1999
<PAGE>
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association , at the close of business on March 31, 1999, published in
response to call made by Comptroller of the Currency, under title 12, United
States Code, Section 161. Charter Number 33869 Comptroller of the Currency
Northeastern District. Statement of Resources and Liabilities
ASSETS
Thousand of Dollars
-------------------
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin.......... 11,400,000
Interest-bearing balances................................... 454,000
Securities.................................................... /////////
Hold-to-maturity securities................................. 1,873,000
Available-for-sale securities............................... 38,611,000
Federal funds sold and securities purchased under agreements
to resell 3,359,000
Loans and lease financing receivables:
Loan and leases, net of unearned income.............. 131,165,000
LESS: Allowance for loan and lease losses............ 1,812,000
LESS: Allocated transfer risk reserve................ 0
Loans and leases, net of unearned income, allowance,
and reserve.......................................... 129,353,000
Assets held in trading accounts............................... 4,725,000
Premises and fixed assets (including capitalized leases)...... 3,218,000
Other real estate owned....................................... 126,000
Investment in unconsolidated subsidiaries and associated
companies................................................... 321,000
Customer's liability to this bank on acceptances outstanding.. 769,000
Intangible assets............................................. 5,285,000
Other assets.................................................. 9,176,000
Total assets.................................................. 208,670,000
LIABILITIES
Deposits:
In domestic offices.................................. 128,512,000
Noninterest-bearing................................ 21,581,000
Interest-bearing................................... 106,931,000
In foreign offices, Edge and Agreement subsidiaries,
and IBFs............................................. 9,452,000
Noninterest-bearing................................ 553,000
Interest-bearing................................... 8,899,000
Federal funds purchased and securities sold under agreements
to repurchase .................................... 19,561,000
Demand notes issued to the U.S. Treasury...................... 500,000
Trading liabilities........................................... 3,585,000
Other borrowed money:(includes mortgage indebtness and
obligations under capitalized leases).
With original maturity of one year or less........... 12,891,000
With original maturity of more than one year......... 3,583,000
With original maturity of more than three years...... 774,000
Mortgage indebtedness and obligations under capitalized leases
Bank's liability on acceptances executed and outstanding..... 769,000
Subordinated notes and debentures............................ 4,045,000
Other liabilities............................................ 7,306,000
Total liabilities............................................ 190,978,0000
Limited-life preferred stock and related surplus............. 0
<PAGE>
EQUITY CAPITAL
Perpetual preferred stock and related surplus................. 161,000
Common Stock.................................................. 455,000
Surplus....................................................... 13,291,000
Undivided profits and capital reserves........................ 3,768,000
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 22,000
Cumulative foreign currency translation adjustments........... (5,000)
Total equity capital.......................................... 17,692,000
Total liabilities, limited-life preferred stock and equity
capital..................................................... 208,670,000
<PAGE>
BY-LAWS OF
FIRST UNION NATIONAL BANK
Charter No. 1
Effective May 18, 1998
<PAGE>
BY-LAWS OF
FIRST UNION NATIONAL BANK
ARTICLE I
Meetings of Shareholders
Section 1.1 Annual Meeting. The annual meeting of the shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on the third Tuesday of April in
each year, commencing with the year 1998, except that the Board of Directors
may, from time to time and upon passage of a resolution specifically setting
forth its reasons, set such other date for such meeting during the month of
April as the Board of Directors may deem necessary or appropriate; provided,
however, that if an annual meeting would otherwise fall on a legal holiday, then
such annual meeting shall be held on the second business day following such
legal holiday. The holders of a majority of the outstanding shares entitled to
vote which are represented at any meeting of the shareholders may choose persons
to act as Chairman and as Secretary of the meeting.
Section 1.2 Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by the Board of Directors or by any three or more shareholders owning,
in the aggregate, not less than ten percent of the stock of the Association.
Every such special meeting, unless otherwise provided by law, shall be called by
mailing, postage prepaid, not less than ten days prior to the date fixed for
such meeting, to each shareholder at his address appearing on the books of the
Association, a notice stating the purpose of the meeting.
Section 1.3 Nominations for Directors. Nominations for election to the
Board of Directors may be made by the Board of Directors or by any stockholder
of any outstanding class of capital stock of the bank entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the bank, shall be made in writing and shall be delivered
or mailed to the President of the Bank and to the Comptroller of the Currency,
Washington, D. C., not less than 14 days nor more than 50 days prior to any
meeting of stockholders called for the election of directors, provided however,
that if less than 21 days' notice of such meeting is given to
2
<PAGE>
shareholders, such nomination shall be mailed or delivered to the President of
the Bank and to the Comptroller of the Currency not later than the close of
business on the seventh day following the day on which the notice of meeting was
mailed. Such notification shall contain the following information to the extent
known to the notifying shareholder: (a) the name and address of each proposed
nominee; (b) the principal occupation of each proposed nominee; (c) the total
number of shares of capital stock of the bank that will be voted for each
proposed nominee; (d) the name and residence address of the notifying
shareholder; and (e) the number of shares of capital stock of the bank owned by
the notifying shareholder. Nominations not made in accordance herewith may, in
his discretion, be disregarded by the chairman of the meeting, and upon his
instructions, the vote tellers may disregard all votes cast for each such
nominee.
Section 1.4 Judges of Election. The Board may at any time appoint from
among the shareholders three or more persons to serve as Judges of Election at
any meeting of shareholders; to act as judges and tellers with respect to all
votes by ballot at such meeting and to file with the Secretary of the meeting a
Certificate under their hands, certifying the result thereof.
Section 1.5 Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing, but no officer or employee
of this Association shall act as proxy. Proxies shall be valid only for one
meeting, to be specified therein, and any adjournments of such meeting. Proxies
shall be dated and shall be filed with the records of the meeting.
Section 1.6 Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law; but less than a quorum may
adjourn any meeting, from time to time, and the meeting may be held, as
adjourned, without further notice. A majority of the votes cast shall decide
every question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
Directors
Section 2.1 Board of Directors. The Board of Directors (hereinafter
referred to as the "Board"), shall have power to manage and administer the
business and affairs of the Association. Except as expressly limited by law, all
corporate powers of the Association shall be vested in and may be exercised by
said Board.
3
<PAGE>
Section 2.2 Number. The Board shall consist of not less than five nor more
than twenty-five directors, the exact number within such minimum and maximum
limits to be fixed and determined from time to time by resolution of a majority
of the full Board or by resolution of the shareholders at any meeting thereof;
provided, however, that a majority of the full Board of Directors may not
increase the number of directors to a number which, (1) exceeds by more than two
the number of directors last elected by shareholders where such number was
fifteen or less, and (2) to a number which exceeds by more than four the number
of directors last elected by shareholders where such number was sixteen or more,
but in no event shall the number of directors exceed twenty-five.
Section 2.3 Organization Meeting. The Secretary of the meeting upon
receiving the certificate of the judges, of the result of any election, shall
notify the directors-elect of their election and of the time at which they are
required to meet at the Main Office of the Association for the purpose of
organizing the new Board and electing and appointing officers of the Association
for the succeeding year. Such meeting shall be held as soon thereafter as
practicable. If, at the time fixed for such meeting, there shall not be a quorum
present, the directors present may adjourn the meeting from time to time, until
a quorum is obtained.
Section 2.4 Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place and time as may be designated by resolution of the
Board of Directors. Upon adoption of such resolution, no further notice of such
meeting dates or the places or times thereof shall be required. Upon the failure
of the Board of Directors to adopt such a resolution, regular meetings of the
Board of Directors shall be held, without notice, on the third Tuesday in
February, April, June, August, October and December, commencing with the year
1997, at the main office or at such other place and time as may be designated by
the Board of Directors. When any regular meeting of the Board would otherwise
fall on a holiday, the meeting shall be held on the next business day unless the
Board shall designate some other day.
Section 2.5 Special Meetings. Special meetings of the Board of Directors
may be called by the President of the Association, or at the request of three
(3) or more directors. Each member of the Board of Directors shall be given
notice stating the time and place, by telegram, letter, or in person, of each
such special meeting.
Section 2.6 Quorum. A majority of the directors shall constitute a quorum
at any meeting, except when otherwise provided by law; but a less
4
<PAGE>
number may adjourn any meeting, from time to time, and the meeting may be held,
as adjourned, without further notice.
Section 2.7 Vacancies. When any vacancy occurs among the directors, the
remaining members of the Board, in accordance with the laws of the United
States, may appoint a director to fill such vacancy at any regular meeting of
the Board, or at a special meeting called for that purpose.
Section 2.8 Advisory Boards. The Board of Directors may appoint Advisory
Boards for each of the states in which the Association conducts operations. Each
such Advisory Board shall consist of as many persons as the Board of Directors
may determine. The duties of each Advisory Board shall be to consult and advise
with the Board of Directors and senior officers of the Association in such state
with regard to the best interests of the Association and to perform such other
duties as the Board of Directors may lawfully delegate. The senior officer in
such state, or such officers as directed by such senior officer, may appoint
advisory boards for geographic regions within such state and may consult with
the State Advisory Boards prior to such appointments.
ARTICLE III
Committees of the Board
Section 3.1 The Board of Directors, by resolution adopted by a majority of
the number of directors fixed by these By-Laws, may designate two or more
directors to constitute an Executive Committee and other committees, each of
which, to the extent authorized by law and provided in such resolution, shall
have and may exercise all of the authority of the Board of Directors and the
management of the Association. The designation of any committee and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility or liability imposed
upon it or any member of the Board of Directors by law. The Board of Directors
reserves to itself alone the power to act on (1) dissolution, merger or
consolidation, or disposition of substantially all corporate property, (2)
designation of committees or filling vacancies on the Board of Directors or on a
committee of the Board (except as hereinafter provided), (3) adoption, amendment
or repeal of By-laws, (4) amendment or repeal of any resolution of the Board
which by its terms is not so amendable or repealable, and (5) declaration of
dividends, issuance of stock, or recommendations to stockholders of any action
requiring stockholder approval.
The Board of Directors or the Chairman of the Board of Directors of the
Association may change the membership of any committee at any time, fill
5
<PAGE>
vacancies therein, discharge any committee or member thereof either with or
without cause at any time, and change at any time the authority and
responsibility of any such committee.
A majority of the members of any committee of the Board of Directors may
fix such committee's rules of procedure. All action by any committee shall be
reported to the Board of Directors at a meeting succeeding such action, except
such actions as the Board may not require to be reported to it in the resolution
creating any such committee. Any action by any committee shall be subject to
revision, alteration, and approval by the Board of Directors, except to the
extent otherwise provided in the resolution creating such committee; provided,
however, that no rights or acts of third parties shall be affected by any such
revision or alteration.
ARTICLE IV
Officers and Employees
Section 4.1 Officers. The officers of the Association may be a Chairman of
the Board, a Vice Chairman of the Board, one or more Chairmen or Vice Chairmen
(who shall not be required to be directors of the Association), a President, one
or more Vice Presidents, a Secretary, a Cashier or Treasurer, and such other
officers, including officers holding similar or equivalent titles to the above
in regions, divisions or functional units of the Association, as may be
appointed by the Board of Directors. The Chairman of the Board and the President
shall be members of the Board of Directors. Any two or more offices may be held
by one person, but no officer shall sign or execute any document in more than
one capacity.
Section 4.2 Election, Term of Office, and Qualification. Each officer
shall be chosen by the Board of Directors and shall hold office until the annual
meeting of the Board of Directors held next after his election or until his
successor shall have been duly chosen and qualified, or until his death, or
until he shall resign, or shall have been disqualified, or shall have been
removed from office.
Section 4.2(a) Officers Acting as Assistant Secretary. Notwithstanding
Section 1 of these By-laws, any Senior Vice President, Vice President, or
Assistant Vice President shall have, by virtue of his office, and by authority
of the By-laws, the authority from time to time to act as an Assistant Secretary
of the Bank, and to such extent, said officers are appointed to the office of
Assistant Secretary.
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Section 4.3 Chief Executive Officer. The Board of Directors shall
designate one of its members to be the President of this Association, and the
officer so designated shall be an ex officio member of all committees of the
Association except the Examining Committee, and its Chief Executive Officer
unless some other officer is so designated by the Board of Directors.
Section 4.4 Duties of Officers. The duties of all officers shall be
prescribed by the Board of Directors. Nevertheless, the Board of Directors may
delegate to the Chief Executive Officer the authority to prescribe the duties of
other officers of the corporation not inconsistent with law, the charter, and
these By-laws, and to appoint other employees, prescribe their duties, and to
dismiss them. Notwithstanding such delegation of authority, any officer or
employee also may be dismissed at any time by the Board of Directors.
Section 4.5 Other Employees. The Board of Directors may appoint from time
to time such tellers, vault custodians, bookkeepers, and other clerks, agents,
and employees as it may deem advisable for the prompt and orderly transaction of
the business of the Association, define their duties, fix the salary to be paid
them, and dismiss them. Subject to the authority of the Board of Directors, the
Chief Executive Officer or any other officer of the Association authorized by
him, may appoint and dismiss all such tellers, vault custodians, bookkeepers and
other clerks, agents, and employees, prescribe their duties and the conditions
of their employment, and from time to time fix their compensation.
Section 4.6 Removal and Resignation. Any officer or employee of the
Association may be removed either with or without cause by the Board of
Directors. Any employee other than an officer elected by the Board of Directors
may be dismissed in accordance with the provisions of the preceding Section 4.5.
Any officer may resign at any time by giving written notice to the Board of
Directors or to the Chief Executive Officer of the Association. Any such
resignation shall become effective upon its being accepted by the Board of
Directors, or the Chief Executive Officer.
ARTICLE V
Fiduciary Powers
Section 5.1 Capital Management Group. There shall be an area of this
Association known as the Capital Management Group which shall be responsible for
the exercise of the fiduciary powers of this Association. The Capital Management
Group shall consist of four service areas: Fiduciary Services, Retail Services,
Investments and Marketing. The Fiduciary Services unit shall consist of
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personal trust, employee benefits, corporate trust and operations. The General
Office for the Fiduciary Services unit shall be located in Charlotte, N.C., with
City Trust Offices located in such cities within the State of North Carolina as
designated by the Board of Directors.
Section 5.2 Trust Officers. There shall be a General Trust Officer of this
Association whose duties shall be to manage, supervise and direct all the
activities of the Capital Management Group. Further, there shall be one or more
Senior Trust Officers designated to assist the General Trust Officer in the
performance of his duties. They shall do or cause to be done all things
necessary or proper in carrying out the business of the Capital Management Group
in accordance with provisions of applicable law and regulation.
Section 5.3 Capital Management/General Trust Committee. There shall be a
Capital Management/General Trust Committee composed of not less than four (4)
members of the Board of Directors or officers of this Association who shall be
appointed annually or from time to time by the Board of Directors of the
Association. The General Trust Officer shall serve as an ex-officio member of
the Committee. Each member shall serve until his successor is appointed. The
Board of Directors or the Chairman of the Board may change the membership of the
Capital Management/General Trust Committee at any time, fill vacancies therein,
or discharge any member thereof with or without cause at any time. The Committee
shall counsel and advise on all matters relating to the business or affairs of
the Capital Management Group and shall adopt overall policies for the conduct of
the business of the Capital Management Group including but not limited to:
general administration, investment policies, new business development, and
review for approval of major assignments of functional responsibilities. The
Committee shall meet at least quarterly or as called for by its Chairman or any
three (3) members of the Committee. A quorum shall consist of three (3) members.
In carrying out its responsibilities, the Capital Management/General Trust
Committee shall review the actions of all officers, employees and committees
utilized by this Association in connection with the activities of the Capital
Management Group and may assign the administration and performance of any
fiduciary powers or duties to any of such officers or employees or to the
Investment Policy Committee, Personal Trust Administration Committee, Account
Review Committee, Corporate and Institutional Accounts Committee, or any other
committees it shall designate. One of the methods to be used in the review
process will be the thorough scrutiny of the Report of Examination by the Office
of the Comptroller of the Currency and the reports of the Audit Division of
First Union Corporation, as they relate to the activities of the Capital
Management Group. These reviews shall be in addition to reviews of such reports
by the Audit Committee of the Board of Directors. The Chairman of the Capital
Management/General Trust
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Committee shall be appointed by the Chairman of the Board of Directors. He shall
cause to be recorded in appropriate minutes all actions taken by the Committee.
The minutes shall be signed by its Secretary and approved by its Chairman.
Further, the Committee shall summarize all actions taken by it and shall submit
a report of its proceedings to the Board of Directors at its next regularly
scheduled meeting following a meeting of the Capital Management/General Trust
Committee. As required by Section 9.7 of Regulation 9 of the Comptroller of the
Currency, the Board of Directors retains responsibility for the proper exercise
of the fiduciary powers of this Association.
The Fiduciary Services unit of the Capital Management Group will maintain
a list of securities approved for investment in fiduciary accounts and will from
time to time provide the Capital Management/General Trust Committee with current
information relative to such list and also with respect to transactions in other
securities not on such list. It is the policy of this Association that members
of the Capital Management/General Trust Committee should not buy, sell or trade
in securities which are on such approved list or in any other securities in
which the Fiduciary Services unit has taken, or intends to take, a position in
fiduciary accounts in any circumstances in which any such transaction could be
viewed as a possible conflict of interest or could constitute a violation of
applicable law or regulation. Accordingly, if any such securities are owned by
any member of the Capital Management/General Trust Committee at the time of
appointment to such Committee, the Capital Management Group shall be promptly so
informed in writing. If any member of the Capital Management/General Trust
Committee intends to buy, sell, or trade in any such securities while serving as
a member of the Committee, he should first notify the Capital Management Group
in order to make certain that any proposed transaction will not constitute a
violation of this policy or of applicable law or regulation.
Section 5.4 Investment Policy Committee. There shall be an Investment
Policy Committee composed of not less than seven (7) officers and/or employees
of this Association who shall be appointed annually or from time to time by the
Board of Directors. Each member shall serve until his successor is appointed.
Meetings shall be called by the Chairman or any two (2) members of the
Committee. A quorum shall consist of five (5) members. The Investment Policy
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General Trust Committee. All actions
taken by the Investment Policy Committee shall be recorded in appropriate
minutes, signed by the Secretary thereof, approved by its Chairman and submitted
to the Capital Management/General Trust Committee at its next ensuing regular
meeting for its review and approval.
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Section 5.5 Personal Trust Administration Committee. There shall be a
Personal Trust Administration Committee composed of not less than five (5)
officers, who shall be appointed annually or from time to time by the Board of
Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any three (3) members of the Committee. A
quorum shall consist of three (3) members. The Personal Trust Administration
Committee shall exercise such fiduciary powers and perform such duties as may be
assigned to it by the Capital Management/General Trust Committee. All action
taken by the Personal Trust Administration Committee shall be recorded in
appropriate minutes signed by the Secretary thereof, approved by its Chairman,
and submitted to the Capital Management/General Trust Committee at its next
ensuing regular meeting for its review and approval.
Section 5.6 Account Review Committee. There shall be an Account Review
Committee composed of not less than four (4) officers and/or employees of this
Association, who shall be appointed annually or from time to time by the Board
of Directors. Each member shall serve until his successor is appointed. Meetings
shall be called by the Chairman or any two (2) members of the Committee. A
quorum shall consist of three (3) members. The Account Review Committee shall
exercise such fiduciary powers and perform such duties as may be assigned to it
by the Capital Management/General Trust Committee. All actions taken by the
Account Review Committee shall be recorded in appropriate minutes, signed by the
Secretary thereof, approved by its Chairman and submitted to the Capital
Management/General Trust Committee at its next ensuing regular meeting for its
review and approval.
Section 5.7 Corporate and Institutional Accounts Committee. There shall be
a Corporate and Institutional Accounts Committee composed of not less than five
(5) officers and/or employees of this Association, who shall be appointed
annually, or from time to time, by the Capital Management/General Trust
Committee and approved by the Board of Directors. Meetings may be called by the
Chairman or any two (2) members of the Committee. A quorum shall consist of
three (3) members. The Corporate and Institutional Accounts Committee shall
exercise such fiduciary powers and duties as may be assigned to it by the
General Trust Committee. All actions taken by the Corporate and Institutional
Accounts Committee shall be recorded in appropriate minutes, signed by the
Secretary thereof, approved by its Chairman and made available to the General
Trust Committee at its next ensuing regular meeting for its review and approval.
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ARTICLE VI
Stock and Stock Certificates
Section 6.1 Transfers. Shares of stock shall be transferable on the books
of the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his shares, succeed to all rights and liabilities of the
prior holder of such shares.
Section 6.2 Stock Certificates. Certificates of stock shall bear the
signature of the Chairman, the Vice Chairman, the President, or a Vice President
(which may be engraved, printed, or impressed), and shall be signed manually or
by facsimile process by the Secretary, Assistant Secretary, Cashier, Assistant
Cashier, or any other officer appointed by the Board of Directors for that
purpose, to be known as an Authorized Officer, and the seal of the Association
shall be engraved thereon. Each certificate shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
ARTICLE VII
Corporate Seal
Section 7.1 The President, the Cashier, the Secretary, or any Assistant
Cashier, or Assistant Secretary, or other officer thereunto designated by the
Board of Directors shall have authority to affix the corporate seal to any
document requiring such seal, and to attest the same. Such seal shall be
substantially in the following form.
ARTICLE VIII
Miscellaneous Provisions
Section 8.1 Fiscal Year. The fiscal year of the Association shall be the
calendar year.
Section 8.2 Execution of Instruments. All agreements, indentures,
mortgages, deeds, conveyances, transfers, certificates, declarations, receipts,
discharges, releases, satisfactions, settlements, petitions, notices,
applications, schedules, accounts, affidavits, bonds, undertakings, proxies, and
other
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instruments or documents may be signed, executed, acknowledged, verified,
delivered or accepted in behalf of the Association by the Chairman of the Board,
the Vice Chairman of the Board, any Chairman or Vice Chairman, the President,
any Vice President or Assistant Vice President, the Secretary or any Assistant
Secretary, the Cashier or Treasurer or any Assistant Cashier or Assistant
Treasurer, or any officer holding similar or equivalent titles to the above in
any regions, divisions or functional units of the Association, or, if in
connection with the exercise of fiduciary powers of the Association, by any of
said officers or by any Trust Officer or Assistant Trust Officer (or equivalent
titles); provided, however, that where required, any such instrument shall be
attested by one of said officers other than the officer executing such
instrument. Any such instruments may also be executed, acknowledged, verified,
delivered or accepted in behalf of the Association in such other manner and by
such other officers as the Board of Directors may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of these
By-laws.
Section 8.3 Records. The Articles of Association, the By-laws, and the
proceedings of all meetings of the shareholders, the Board of Directors,
standing committees of the Board, shall be recorded in appropriate minute books
provided for the purpose. The minutes of each meeting shall be signed by the
Secretary, Cashier, or other officer appointed to act as Secretary of the
meeting.
ARTICLE IX
By-laws
Section 9.1 Inspection. A copy of the By-laws, with all amendments
thereto, shall at all times be kept in a convenient place at the Head Office of
the Association, and shall be open for inspection to all shareholders, during
banking hours.
Section 9.2 Amendments. The By-laws may be amended, altered or repealed,
at any regular or special meeting of the Board of Directors, by a vote of a
majority of the whole number of Directors.
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Exhibit A
First Union National Bank
Article X
Emergency By-laws
In the event of an emergency declared by the President of the United
States or the person performing his functions, the officers and employees of
this Association will continue to conduct the affairs of the Association under
such guidance from the directors or the Executive Committee as may be available
except as to matters which by statute require specific approval of the Board of
Directors and subject to conformance with any applicable governmental directives
during the emergency.
OFFICERS PRO TEMPORE AND DISASTER
Section 1. The surviving members of the Board of Directors or the
Executive Committee shall have the power, in the absence or disability of any
officer, or upon the refusal of any officer to act, to delegate and prescribe
such officer's powers and duties to any other officer, or to any director, for
the time being.
Section 2. In the event of a state of disaster of sufficient severity to
prevent the conduct and management of the affairs and business of this
Association by its directors and officers as contemplated by these By-laws, any
two or more available members of the then incumbent Executive Committee shall
constitute a quorum of that Committee for the full conduct and management of the
affairs and business of the Association in accordance with the provisions of
Article II of these By-laws; and in addition, such Committee shall be empowered
to exercise all of the powers reserved to the General Trust Committee under
Section 5.3 of Article V hereof. In the event of the unavail- ability, at such
time, of a minimum of two members of the then incumbent Executive Committee, any
three available directors shall constitute the Executive Committee for the full
conduct and management of the affairs and business of the Association in
accordance with the foregoing provisions of this section. This By-law shall be
subject to implementation by resolutions of the Board of Directors passed from
time to time for that purpose, and any provisions of these By-laws (other than
this section) and any resolutions which are contrary to the provisions of this
section or to the provisions of any such implementary
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resolutions shall be suspended until it shall be determined by an interim
Executive Committee acting under this section that it shall be to the advantage
of this Association to resume the conduct and management of its affairs and
business under all of the other provisions of these By-laws.
Officer Succession
BE IT RESOLVED, that if consequent upon war or warlike damage or disaster,
the Chief Executive Officer of this Association cannot be located by the then
acting Head Officer or is unable to assume or to continue normal executive
duties, then the authority and duties of the Chief Executive Officer shall,
without further action of the Board of Directors, be automatically assumed by
one of the following persons in the order designated:
Chairman
President
Division Head/Area Administrator - Within this officer class, officers
shall take seniority on the basis of length of service in such office
or, in the event of equality, length of service as an officer of the
Association.
Any one of the above persons who in accordance with this resolution
assumes the authority and duties of the Chief Executive Officer shall continue
to serve until he resigns or until five-sixths of the other officers who are
attached to the then acting Head Office decide in writing he is unable to
perform said duties or until the elected Chief Executive Officer of this
Association, or a person higher on the above list, shall become available to
perform the duties of Chief Executive Officer of the Association.
BE IT FURTHER RESOLVED, that anyone dealing with this Association may
accept a certification by any three officers that a specified individual is
acting as Chief Executive Officer in accordance with this resolution; and that
anyone accepting such certification may continue to consider it in force until
notified in writing of a change, said notice of change to carry the signatures
of three officers of the Association.
Alternate Locations
The offices of the Association at which its business shall be conducted
shall be the main office thereof in each city which is designated as a City
Office (and branches, if any), and any other legally authorized location which
may be leased or acquired by this Association to carry on its business. During
an emergency resulting in any authorized place of business of this Association
being unable to function, the business ordinarily conducted at such location
shall be relocated
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elsewhere in suitable quarters, in addition to or in lieu of the locations
heretofore mentioned, as may be designated by the Board of Directors or by the
Executive Committee or by such persons as are then, in accordance with
resolutions adopted from time to time by the Board of Directors dealing with the
exercise of authority in the time of such emergency, conducting the affairs of
this Association. Any temporarily relocated place of business of this
Association shall be returned to its legally authorized location as soon as
practicable and such temporary place of business shall then be discontinued.
Acting Head Offices
BE IT RESOLVED, that in case of and provided because of war or warlike
damage or disaster, the General Office of this Association, located in
Charlotte, North Carolina, is unable temporarily to continue its functions, the
Raleigh office, located in Raleigh, North Carolina, shall automatically and
without further action of this Board of Directors, become the "Acting Head
Office of this Association";
BE IT FURTHER RESOLVED, that if by reason of said war or warlike damage or
disaster, both the General Office of this Association and the said Raleigh
Office of this Association are unable to carry on their functions, then and in
such case, the Asheville Office of this Association, located in Asheville, North
Carolina, shall, without further action of this Board of Directors, become the
"Acting Head Office of this Association"; and if neither the Raleigh Office nor
the Asheville Office can carry on their functions, then the Greensboro Office of
this Association, located in Greensboro, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association"; and if neither the Raleigh Office, the Asheville Office, nor the
Greensboro Office can carry on their functions, then the Lumberton Office of
this Association, located in Lumberton, North Carolina, shall, without further
action of this Board of Directors, become the "Acting Head Office of this
Association". The Head Office shall resume its functions at its legally
authorized location as soon as practicable.
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