As filed with the Securities and Exchange Commission on October 11, 2000
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
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Public Service Enterprise
Group Incorporated
(Exact name of registrant as specified in charter)
New Jersey 22-2625848
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
80 Park Plaza
P.O. Box 1171
Newark, New Jersey 07101-1171
(973) 430-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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Robert C. Murray
Vice President and Chief Financial Officer
80 Park Plaza
P.O. Box 1171
Newark, New Jersey 07101-1171
(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:
From time to time after the Registration Statement becomes effective, as
determined by market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[ ]
CALCULATION OF REGISTRATION FEE
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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)
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<S> <C> <C> <C> <C>
Debt Securities $500,000,000 100% $500,000,000 $132,000
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(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
$500,000,000.
(2) Estimated solely for the purpose of determining the registration fee.
(3) $75,000,000 aggregate principal amount of Debt Securities registered on
Form S-3, File No. 333-79101, as to which filing fees of $20,850 were
previously paid, are being carried forward pursuant to Rule 429 of the
rules and regulations under the Securities Act of 1933, as amended.
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Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
prospectus included in this registration statement also relates to $75,000,000
aggregate principal amount of Debt Securities registered on Form S-3, File No.
333-79101 previously filed by the registrant and declared effective on June 3,
1999 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 333-79101, 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.
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The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated October 11, 2000
PROSPECTUS
[LOGO] PSEG
$575,000,000
Debt Securities
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Public Service Enterprise Group Incorporated may offer from time to time,
together or separately, one or more series of its unsecured debt securities
which may be either senior or subordinated in priority of payment.
The Senior Debt Securities will rank equally with all of our other
unsubordinated and unsecured indebtedness. 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, we 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 $575,000,000.
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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.
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The date of this prospectus is , 2000.
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About This Prospectus
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This prospectus is part of a registration statement that Public Service
Enterprise Group Incorporated filed with the Securities and Exchange Commission
(the "SEC") utilizing a "shelf" registration process. Under this shelf process,
we 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 we may offer under this prospectus is
$575,000,000. Each time we sell Debt Securities, we 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 the additional information described under
the heading "Where You Can Find More Information".
We believe that we have included or incorporated by reference all
information material to investors in this prospectus, but certain details that
may be important for specific investment purposes have not been included. To see
more detail, you should read the exhibits filed with or incorporated by
reference into this registration statement.
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Where You Can Find More Information
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We are a New Jersey corporation that files annual, quarterly and special
reports, proxy statements and other information with the SEC. Our 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 we file 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 our common stock is listed.
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Incorporation of Certain Documents by Reference
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The SEC allows us to "incorporate by reference" the information we file
with it, which means that we 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 we file later with
the SEC will automatically update and supersede this information. We incorporate
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 we sell all of the Debt Securities.
1. Our Annual Report on Form 10-K for the year ended December 31, 1999.
2. Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
2000 and June 30, 2000.
3. Our Current Reports on Form 8-K dated August 21, 2000 and September 5,
2000.
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
PSEG Services Corporation
80 Park Plaza, T6B
P.O. Box 570
Newark, New Jersey 07101
Telephone (973) 430-6564
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these Debt Securities in any state where the offer is not permitted.
You should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of those
documents.
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Public Service Enterprise Group Incorporated
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We are a public utility holding company that neither owns nor operates any
physical properties. We have four direct, wholly-owned subsidiaries, Public
Service Electric and Gas Company ("PSE&G"), PSEG Power LLC ("Power"), PSEG
Services Corporation ("Services") and PSEG Energy Holdings Inc. ("Energy
Holdings"). PSE&G is an operating public utility providing electric and gas
service in certain areas of the State of New Jersey. Power is an electric power
generation and wholesale energy marketing and trading company. Services provides
management and administrative services to us and our subsidiaries. Energy
Holdings is the parent of three energy-related lines of business through its
wholly-owned subsidiaries: PSEG Global Inc., PSEG Resources Inc. and PSEG Energy
Technologies Inc. Energy Holdings is also the parent of Enterprise Group
Development Corporation, PSEG Capital Corporation and Enterprise Capital Funding
Corporation.
Our executive offices are located at 80 Park Plaza, P.O. Box 1171, Newark,
New Jersey 07101-1171 and our 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 our general funds
and will be used for general corporate purposes including the refunding of
maturing debt and making additional investments in our subsidiaries. Such
proceeds may be applied to the reduction of short-term indebtedness incurred for
such purposes. At September 30, 2000, our outstanding long-term debt securities
consisted of $100 million of Floating Rate Extendible Notes, Series A due
November 22, 2000 (current rate: Libor plus .22%), $175 million of Extendible
Notes, Series B due November 22, 2000 (current rate: LIBOR plus .32%), $300
million of Extendible Notes, Series C due June 15, 2001 (current rate: LIBOR
plus .375%), $225 million of 7.44% Deferrable Interest Subordinated Debentures,
Series A due 2047, $150 million of Floating Rate Deferrable Interest
Subordinated Debentures, Series B due 2046 and $150 million of 7 1/4% Deferrable
Interest Subordinated Debentures, Series C due 2047.
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Description of Debt Securities
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The Debt Securities will be our 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 us 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 us 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 our direct, unsecured obligations. The Senior
Securities will rank equally with all of our other unsecured and unsubordinated
indebtedness. The Subordinated Securities will be subordinated in right of
payment to the prior payment in full of our Senior Indebtedness as described
under "Subordinated Indenture Provisions."
Because we are a holding company that conducts all of our operations
through our 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 other than, in each case, where we are the
creditor or stockholder. PSE&G has 2,145,234 outstanding shares of preferred
stock with an aggregate par value of approximately $170 million. Our
subsidiaries have ongoing corporate debt programs used to finance their business
activities. As of June 30, 2000, our subsidiaries had approximately $7.9 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 of our unsecured debt securities, may be issued under such Indenture in
one or more series, in each case as authorized by us from time to time. 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.
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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
our option and whether we are to have that option.
(7) Our obligation, if any, 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
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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 us 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.
(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 we 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 we will have the
option to redeem such
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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 our covenants 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.
Each Indenture provides that the Debt Securities which are the subject of
this prospectus and any of our additional unsecured debt securities, 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 our Board of Directors. (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 our ability to incur indebtedness or that would afford holders
of Debt Securities protection in the event of a highly leveraged or similar
transaction involving us. You should refer to the prospectus supplement for
information with respect to any
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deletions from, modifications of or additions to the Events of Default or the
covenants that are described below, including any addition of a covenant or
other provision providing event risk or similar protection.
We have 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 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 us for payment of such series
as described in "Payment and Paying Agents", and (ii) at each other office or
agency that we may designate from time to time for such purposes. No service
charge will be made for any transfer or exchange of Debt Securities, but we may
require payment of any tax or other governmental charge payable in connection
therewith. (Section 305 of each Indenture)
We 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
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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 us in Newark, New Jersey and New York, New York, except that at our option
interest (including Additional Amounts, if any) may be paid (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto as specified in the Security Register. (Sections 301,
1001 and 1002 of each Indenture) Unless otherwise provided in the prospectus
supplement, payment of any installment of interest on Registered Securities will
be made to the Person in whose name such Registered Security is registered at
the close of business on the Regular Record Date for such interest. (Section 307
of each Indenture)
If Debt Securities of a series are issuable solely as Bearer Securities or
as both Registered Securities and Bearer Securities, unless otherwise provided
in the prospectus supplement, we 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, we 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 maintained by us 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 our
Paying Agent in The City of New York if (but only if)
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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)
We 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 with
respect to any series of Debt Securities issued thereunder: (i) default in the
payment of any interest upon any Debt Security of that series 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 and continuance of such default for
a period of 30 days; (ii) 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; (iii) default in the deposit of any sinking fund payment when due by
the terms of any Debt Security of that series; (iv) our default in the
performance, or breach, of any covenant or agreement in the applicable Indenture
with respect to any Debt Security of that series, continued for 60 days after
written notice to us; (v) certain events in bankruptcy, insolvency or
reorganization affecting us; and (vi) any other Event of Default provided with
respect to Debt Securities of that series. (Section 501 of each Indenture) We
are required to file with the applicable Trustee, annually, an officer's
certificate as to our compliance with all conditions and covenants under the
applicable Indenture. (Section 1005 of each Indenture) Each Indenture provides
that the applicable Trustee may withhold notice to the holders of Debt
Securities of a series of any default (except payment defaults on such Debt
Securities of that series) if it considers it in the interests 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)
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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 we may not consolidate with or merge with or
into any other corporation or convey or transfer our properties or assets in
their entirety or substantially in their entirety to any Person, unless we are
the continuing corporation or such corporation or Person assumes by supplemental
indenture all of our obligations 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 of our property or assets would
become subject to any mortgage, lien or other encumbrance unless such Indenture
Securities are secured equally and ratably with or prior to the debt secured by
such mortgage, lien or other encumbrance. (Section 801 of each Indenture)
Modification or Waiver
Modification and amendment of an Indenture may be made by us 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 our obligation 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
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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 our compliance with certain
covenants in the applicable Indenture. (Section 1006 of each Indenture)
Modification and amendment of an Indenture may be made by us 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 us as
obligor under such Indenture; (ii) to add to our covenants 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 us by such Indenture; (iii) to add Events of Default for the benefit of the
holders of all or any series of Indenture Securities; (iv) to add to or change
any provisions of such Indenture to facilitate the issuance of, or to liberalize
the terms of, Bearer Securities, or to permit or facilitate the issuance of
Indenture Securities in uncertificated form, provided that any such actions do
not adversely affect the holders of such Indenture Securities or any related
coupons; (v) to change or eliminate any provisions of such Indenture, provided
that any such change or elimination will become effective only when there are no
such Indenture Securities Outstanding of any series created prior thereto which
are entitled to the benefit of such provisions; (vi) to secure the Indenture
Securities under the applicable Indenture pursuant to the requirements of
Section 801 of such Indenture, or otherwise; (vii) to establish the form or
terms of such Indenture Securities of any series and any related coupons; (viii)
to provide for the acceptance of appointment by a successor Trustee or
facilitate the administration of the trusts under such Indenture by more than
one Trustee; (ix) to cure any ambiguity, defect or inconsistency in such
Indenture, provided such action does not adversely affect the interests of
holders of Indenture Securities of a series issued thereunder or any related
coupons in any material respect; or (x) to supplement any of the provisions of
such Indenture to the extent necessary to permit or facilitate defeasance and
discharge of any series of Indenture Securities thereunder, provided that such
action does 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
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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 us or any
other obligor upon the Indenture Securities or any Affiliate of ours 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 us or
the holders of at least 10% in principal amount of the Outstanding Indenture
Securities of that series, in any such case upon notice given as provided in the
applicable Indenture. (Section 1502 of each Indenture) Except for any consent
that must be given by the holder of each Indenture Security affected thereby, as
described above, any resolution presented at a meeting (or an adjourned meeting
duly reconvened) at which a quorum is present may be adopted by the affirmative
vote of the holders of a majority in principal amount of the Outstanding
Indenture Securities of that series; provided, however, that any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the holders of a
specified percentage which is less than a majority in principal amount of the
Outstanding Indenture Securities of a series may be adopted at a meeting (or an
adjourned meeting duly reconvened) at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the Outstanding Indenture Securities of that series. Any resolution passed or
decision taken at any meeting of holders of Indenture Securities of a series
duly held in accordance with the applicable Indenture will be binding on all
holders of Indenture Securities of that series and any related coupons. The
quorum at any meeting called to adopt a resolution will be persons holding or
representing a majority in principal amount of the Outstanding Indenture
Securities of a series; provided, however, that, if any action is to be taken at
such meeting with respect to a consent or waiver which may be given by the
holders of not less than a specified percentage in principal amount of the
Outstanding Indenture Securities of a series, the persons holding or
representing such specified percentage in principal amount of the Outstanding
Indenture Securities of that series will constitute a quorum. (Section 1504 of
each Indenture)
Notwithstanding the foregoing provisions, if any action is to be taken at
a meeting of holders of Indenture Securities of a series with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that the applicable Indenture expressly provides may be made, given or
taken by the holders of a specified percentage in principal amount of all
Outstanding Indenture Securities affected thereby or of the holders of such
series and one or more additional series: (i) there shall be no minimum quorum
requirement for such meeting and (ii) the principal amount of the Outstanding
Indenture Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action will be taken
into account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or taken
under such Indenture. (Section 1504 of each Indenture)
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Satisfaction and Discharge, Defeasance and Covenant Defeasance
We 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, we 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 of each Indenture), in either case upon
our irrevocable deposit 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, we have
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
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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 we effect 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 (iv) or (vi) under "Events of
Default" (Section 501 of each Indenture) with respect to any covenant as 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, we
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 our obligations under such Indenture and such
Debt Securities and any related coupons shall be revived and reinstated as
though no deposit had occurred pursuant to such Indenture, until such time as
such Trustee or Paying Agent is permitted to apply all such money in accordance
with such Indenture; provided, however, that if we make 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 our obligations, we 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 us to the applicable Trustee, and then by such Trustee to the
depository.
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We anticipate 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 us within 90 days
following notice to us, (ii) we determine, in our 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 we will issue individual Debt Securities in certificated form in exchange
for the relevant Global Securities. In any such instance, an owner of a
beneficial interest in a Global Security will be entitled to physical delivery
of individual Debt Securities in certificated form of like tenor and rank, equal
in principal amount to such beneficial interest and to have such Debt Securities
in certificated form registered in its name. Unless otherwise provided in the
prospectus supplement, Debt Securities so issued in certificated form will be
issued in denominations of $1,000 or any integral multiple thereof and will be
issued in registered form only, without coupons.
The following is based on information furnished by DTC and we assume 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 $400 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 ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
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.
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DTC is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, LLC 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 Direct and Indirect Participants are on file with the SEC.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, who 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. or such other name as may be
requested by an authorized representative of DTC. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co. or such
other nominee effects no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Debt Securities; DTC's 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 DTC. 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 the interest of each Direct Participant in such issue to be
redeemed.
Neither DTC nor Cede & Co. (or other nominee) 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 Cede & Co. or other nominee. 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
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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 us, 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 us 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 us 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.
We 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 we believe are reliable, but
we take no responsibility for the accuracy thereof.
Unless stated otherwise in the prospectus supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of us, 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 Trustees 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 our assets 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
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Senior Indebtedness (Sections 1601 and 1602 of the Subordinated Indenture), but
our obligation 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 fund 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 us
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, 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 of our general
creditors may recover more, ratably, than holders of the Subordinated
Securities. The Subordinated Indenture provides that the subordination
provisions thereof will not apply to money and securities held in trust pursuant
to the defeasance provisions of the Subordinated Indenture. (Section 1402 of the
Subordinated Indenture)
"Senior Indebtedness" is defined in the Subordinated Indenture as (a) the
principal of and premium, if any, and unpaid interest on (i) our indebtedness
(including indebtedness of others guaranteed by us), 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 our 7.44% Deferrable Interest Subordinated
Debentures, Series A, our Floating Rate Deferrable Interest Subordinated
Debentures, Series B, and our 7 1/4% Deferrable Interest Subordinated
Debentures, Series C), 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 our 7.44%
Deferrable Interest Subordinated Debentures, Series A, our Floating Rate
Deferrable Interest Subordinated Debentures, Series B, and our 7 1/4% Deferrable
Interest Subordinated Debentures, Series C 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.
20
<PAGE>
The Trustee under the Indentures
We maintain 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 we or our subsidiaries are
the obligors.
================================================================================
Plan of Distribution
================================================================================
We 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 we have 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 us and
any other discounts, concessions or commissions allowed or reallowed or paid by
any underwriters to other dealers, (iv) any commissions paid to any agents, (v)
the net proceeds to us 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 us directly or through
agents we designate 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 us to such agent will be set forth in,
the applicable prospectus supplement. Unless otherwise indicated in the
applicable prospectus supplement, each such agent will be acting on a best
efforts basis for the period of its appointment.
Any underwriters, dealers or agents participating in the distribution of
the Debt Securities may be deemed to be underwriters, and any discounts or
commissions received by them on the sale or resale of Debt Securities may be
deemed to be underwriting discounts and commissions, under the Securities Act of
1933, as amended (the "Securities Act"). Underwriters, dealers and agents may be
entitled, under agreements entered into with us, to indemnification by us
against certain civil liabilities, including liabilities under the Securities
Act.
21
<PAGE>
================================================================================
Legal Opinions
================================================================================
The validity of the Debt Securities will be passed upon for us 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 Services.
================================================================================
Experts
================================================================================
Our consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from our Annual Report on
Form 10-K for the year ended December 31, 1999 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 ............................................... $132,000
Printing and engraving ............................................. 100,000
Legal fees and expenses (including Blue Sky Fees and expenses) ..... 50,000
Fees of accountants ................................................ 30,000
Fees of trustees ................................................... 10,000
Rating agency fees ................................................. 262,500
Miscellaneous ...................................................... 15,500
--------
Total .......................................................... $600,000
========
Item 15. Indemnification of Directors and Officers.
Under Section 14A:3-5 of the New Jersey Business Corporation Act, we
(1) have power to indemnify each of our directors and officers (as
well as our 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 our
own right if (a) such director or officer acted in good faith and in a
manner he reasonably believed to be in or not opposed to our best
interests, and (b) with respect to any criminal proceeding, such director
or officer had no reasonable cause to believe his conduct was unlawful;
(2) have power to indemnify each of our directors and officers
against expenses in connection with any proceeding by or in our own right
to procure a judgment in our 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 our best interests; 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 us, 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) have 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 we 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 us 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 our 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 our 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 us and the Underwriters
contains a provision under which each Underwriter agrees to indemnify our
directors and each of our officers who signed the registration statement against
certain liabilities which might arise under the Securities Act of 1933, as
amended, from information furnished to us in writing by or on behalf of such
Underwriter.
Our directors and officers 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 we are insured to
the extent that we are required or permitted by law to indemnify the directors
and officers for such loss. We pay the premiums for such insurance.
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 Senior Debt Security./3/
4-4 Form of Subordinated Debt Security./3/
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 June 30, 2000).
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/ 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 this 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 this
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective 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 this registration statement;
provided, however, that paragraphs (a)(1) (i) and (a)(1) (ii) do not
apply if 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 this 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) 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, Registrant
certifies that it has reasonable grounds to believe that it meets all 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 and State of New Jersey on the 10th day of
October, 2000.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
By: /s/ E. JAMES FERLAND
------------------------------------
E. James Ferland
Chairman of the Board,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ E. JAMES FERLAND Chairman of the Board, President October 10, 2000
-------------------------------- and Chief Executive Officer and
E. James Ferland Director (Principal Executive Officer)
/s/ ROBERT C. MURRAY Vice President and Chief Financial October 10, 2000
-------------------------------- Officer (Principal Financial Officer)
Robert C. Murray
/s/ PATRICIA A. RADO Vice President and Controller October 10, 2000
-------------------------------- (Principal Accounting Officer)
Patricia A. Rado
/s/ ERNEST H. DREW Director October 10, 2000
--------------------------------
Ernest H. Drew
/s/ T.J. DERMOT DUNPHY Director October 10, 2000
---------------------------------
T.J. Dermot Dunphy
/s/ RAYMOND V. GILMARTIN Director October 10, 2000
---------------------------------
Raymond V. Gilmartin
/s/ CONRAD K. HARPER Director October 10, 2000
---------------------------------
Conrad K. Harper
/s/ IRWIN LERNER Director October 10, 2000
---------------------------------
Irwin Lerner
/s/ MARILYN M. PFALTZ Director October 10, 2000
---------------------------------
Marilyn M. Pfaltz
/s/ FORREST J. REMICK Director October 10, 2000
---------------------------------
Forrest J. Remick
/s/ RICHARD J. SWIFT Director October 10, 2000
---------------------------------
Richard J. Swift
</TABLE>
II-4
<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 Senior Debt Security./3/
4-4 Form of Subordinated Debt Security./3/
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 June 30, 2000).
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/ To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
