FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
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(Exact name of registrant as specified in its charter)
New Jersey 22-1212800
- --------------------------------------- -----------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification No.)
80 Park Plaza, P.O. Box 570, Newark, New Jersey 07101-0570
- ----------------------------------------------- ----------
(Address of principal executive officers) (Zip Code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1), please check
the following box. [X]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
Public Service Electric and Gas Company
First and Refunding Mortgage Bonds
Remarketable Series YY due 2023, } New York Stock Exchange, Inc.
Mandatorily Tendered 2008 }
Securities to be registered pursuant to Section 12(g) of the Act:
None
-----------------
(Title of Class)
<PAGE>
Public Service Electric and Gas Company
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Item 1. Description of Registrant's Securities to be Registered.
- ------- --------------------------------------------------------
Debt Securities
Description of the securities to be registered is set forth under
"Description of the New Bonds" in the Prospectus, dated April 21, 1998 and filed
with the Securities and Exchange Commission (SEC) under Rule 424 (b) (5) on May
11, 1998, to Registration Statements Nos. 333-27547 and 333-44991 and under
"Description of the New Bonds" in the Prospectus Supplement dated May 7, 1998
which was filed with the SEC under Rule 424 (b) (5) on May 11, 1998. (See
description of issuance below.) Pursuant to the instruction to Item 1. of Form
8-A, copies of said Prospectus dated April 21, 1998, Prospectus Supplement dated
May 7, 1998, and the Supplement to the Prospectus Supplement dated May 7, 1998
and filed with the SEC pursuant to Rule 424(b)(3) on May 14, 1998, are being
submitted with the copy of this Form 8-A being filed with the New York Stock
Exchange, Inc.
The following First and Refunding Mortgage Bonds were issued as
described below:
<TABLE>
<CAPTION>
Principal Amount Registration Numbers Rate Series Maturity Date Issue Date
- ---------------- ----------------------- ----- ------ ------------- ----------
<S> <C> <C> <C> <C> <C>
$250,000,000 333-27547 and 333-44991 6 3/8 YY 2023 5/14/98
</TABLE>
Item 2. Exhibits.
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Exhibit Number
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4 (a) (1) Indenture between the Company and Fidelity Union
Trust Company (now First Union National Bank) as
Trustee, dated August 1, 1924, securing the First
and Refunding Mortgage Bonds, filed by the
Registrant's registration statement under the
Securities Exchange Act of 1934, File No. 1-973,
effective July 1, 1935 and incorporated herein by
this reference thereto.
4 (a) (2) Supplemental Indenture between the Registrant and
First Union National Bank, Trustee, dated May 1,
1998 providing for the issuance of $250,000,000
principal amount of First and Refunding Mortgage
Bonds, Remarketable Series YY due 2023, Mandatorily
Tendered 2008.
99 (a) "Description of the New Bonds" contained in Prospectus
dated April 21, 1998 and filed on May 11, 1998 in
accordance with Rule 424 (b) (5) and incorporated
herein by this reference thereto.
99 (b) "Description of the New Bonds" applicable to Series YY
due 2023 contained in Prospectus Supplement dated
May 7, 1998, filed in accordance with Rule 424 (b) (5)
on May 11, 1998 and incorporated herein by this reference
thereto.
99 (c) "Description of the New Bonds" applicable to Series YY
due 2023 contained in the Supplement to the Prospectus
Supplement dated May 7, 1998, filed in accordance with
Rule 424 (b) (3) on May 14, 1998 and incorporated herein
by this reference thereto.
<PAGE>
SIGNATURE
-------------------
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
By: ROBERT E. BUSCH
-------------------------------
Robert E. Busch
Senior Vice President - Finance and Chief Financial Officer
Dated: May 15, 1998
SUPPLEMENTAL MORTGAGE
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Supplemental Indenture
Dated May 1, 1998
-----------------
SUPPLEMENTAL TO
FIRST AND REFUNDING MORTGAGE
DATED AUGUST 1, 1924
-----------------
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
To
FIRST UNION NATIONAL BANK
Trustee
765 Broad Street
Newark, New Jersey 07101
-----------------
Providing for the issue of
$250,000,000 First and Refunding Mortgage Bonds,
Remarketable Series YY due 2023,
Mandatorily Tendered 2008
----------------------------------------------
RECORD IN MORTGAGE BOOK AND RETURN TO:
JAMES T. FORAN, ESQ.
80 PARK PLAZA, T5B
P.O. BOX 570
NEWARK, N.J. 07101
Prepared by
PAUL T. BRADSHAW
(PAUL T. BRADSHAW, ESQ.)
<PAGE>
TABLE OF CONTENTS
-----------------
Page
RECITALS ............................................................... 1
FORM OF BOND [FACE] .................................................... 3
FORMS OF CERTIFICATES OF AUTHENTICATION ................................ 5
FORM OF BOND [REVERSE] ................................................. 6
GRANTING CLAUSES ....................................................... 10
ARTICLE I.
BONDS OF THE SERIES YY
DESCRIPTION OF SERIES YY ............................................... 12
ARTICLE II.
MANDATORY TENDER, REMARKETING AND REPURCHASE
OF BONDS OF SERIES YY
SECTION 2.01. Mandatory Tender and Remarketing .......................... 13
SECTION 2.02. Repurchase and Redemption ................................. 16
SECTION 2.03. Tender and Settlement Procedures .......................... 17
SECTION 2.04. Termination of the Remarketing Agreement .................. 18
ARTICLE III.
REDEMPTION OF BONDS OF SERIES YY
SECTION 3.01. Redemption - Redemption Prices ............................ 19
SECTION 3.02. Redemption at Election of Company ......................... 21
SECTION 3.03. Redemptions Pursuant to Section 4C of Article Eight of
the Indenture ........................................... 22
SECTION 3.04. Called Bonds to be Surrendered - Interest to Cease ........ 23
SECTION 3.05. Bonds Called in Part ...................................... 23
SECTION 3.06. Provisions of Indenture Not Applicable .................... 24
ARTICLE IV.
MISCELLANEOUS.
SECTION 4.01. Authentication of Bonds of Series YY ...................... 24
SECTION 4.02. Authenticating Agent ...................................... 24
SECTION 4.03. Additional Restrictions on Authentication of Additional
Bonds Under Indenture ................................... 25
SECTION 4.04. Restriction on Dividends .................................. 26
SECTION 4.05. Use of Facsimile Seal and Signatures ...................... 26
SECTION 4.06. Time for Making Payment ................................... 26
SECTION 4.07. Effective Period of Supplemental Indenture ................ 27
SECTION 4.08. Effect of Approval of Board of Public Utilities of the
State of New Jersey .................................... 27
SECTION 4.09. Execution in Counterparts ................................. 27
Acknowledgments ......................................................... 29
Certificate of Residence ................................................ 30
<PAGE>
SUPPLEMENTAL INDENTURE, dated the 1st day of May, 1998 for convenience of
reference and effective from the time of execution and delivery hereof, between
PUBLIC SERVICE ELECTRIC AND GAS COMPANY, a corporation organized under the laws
of the State of New Jersey, hereinafter called the "Company", party of the first
part, and FIRST UNION NATIONAL BANK, a national banking association organized
under the laws of the United States of America, as Trustee under the indenture
dated August 1, 1924, below mentioned, hereinafter called the "Trustee", party
of the second part.
WHEREAS, on July 25, 1924, the Company executed and delivered to FIDELITY
UNION TRUST COMPANY (now known as FIRST UNION NATIONAL BANK), a certain
indenture dated August 1, 1924 (hereinafter called the "Indenture"), to secure
and to provide for the issue of First and Refunding Mortgage Gold Bonds of the
Company; and
WHEREAS, the Indenture has been recorded in the following counties of the
State of New Jersey, in the offices, and therein in the books and at the pages,
as follows:
Page
County Office Book Number Number
- ------ ------ ----------- ------
Atlantic Clerk's 1955 of Mortgages 160
Bergen Clerk's 94 of Chattel Mortgages 123 etc.
693 of Mortgages 85 etc.
Burlington Clerk's 52 of Chattel Mortgages Folio 8, etc.
177 of Mortgages Folio 354, etc.
Camden Register's 45 of Chattel Mortgages 184 etc.
239 of Mortgages 1 etc.
Cumberland Clerk's 786 of Mortgages 638 & c.
Essex Register's 437 of Chattel Mortgages 1-48
T-51 of Mortgages 341-392
Gloucester Clerk's 34 of Chattel Mortgages 123 etc.
142 of Mortgages 7, etc.
Hudson Register's 453 of Chattel Mortgages 9, etc.
1245 of Mortgages 484, etc.
Hunterdon Clerk's 151 of Mortgages 344
Mercer Clerk's 67 of Chattel Mortgages 1 etc.
384 of Mortgages 1 etc.
Middlesex Clerk's 113 of Chattel Mortgages 3 etc.
437 of Mortgages 294, etc.
Monmouth Clerk's 951 of Mortgages 291 & c.
Morris Clerk's N-3 of Chattel Mortgages 446 etc.
F-10 of Mortgages 269 etc.
Ocean Clerk's 1809 of Mortgages 40
Passaic Register's M-6 of Chattel Mortgages 178, etc.
R-13 of Mortgages 268 etc.
Salem Clerk's 267 of Mortgages 249 & c.
Somerset Clerk's 46 of Chattel Mortgages 207 etc.
N-10 of Mortgages I etc.
Sussex Clerk's 12 of Mortgages 10 & c.
Union Register's 128 of Chattel Mortgages 28 & c.
664 of Mortgages 259 etc.
Warren Clerk's 124 of Mortgages 141 etc.
and
WHEREAS, the Indenture has also been recorded in the following counties of
the Commonwealth of Pennsylvania, in the offices, and therein in the books and
at the pages, as follows:
Page
County Office Book Number Number
- ------- ------ ----------- ------
Adams Recorder's 22 of Mortgages 105
Armstrong Recorder's 208 of Mortgages 381
Bedford Recorder's 90 of Mortgages 917
Blair Recorder's 671 of Mortgages 430
Cambria Recorder's 407 of Mortgages 352
Cumberland Recorder's 500 of Mortgages 136
Franklin Recorder's 285 of Mortgages 373
Huntingdon Recorder's 128 of Mortgages 47
Indiana Recorder's 197 of Mortgages 281
Lancaster Recorder's 984 of Mortgages 1
Montgomery Recorder's 5053 of Mortgages 1,221
Westmoreland Recorder's 1281 of Mortgages 198
York Recorder's 31-V of Mortgages 446
and
WHEREAS, the Indenture granted, bargained, sold, aliened, remised,
released, conveyed, confirmed, assigned, transferred and set over unto the
Trustee certain property of the Company, more fully set forth and described in
the Indenture, then owned or which might thereafter be acquired by the Company;
and
WHEREAS, the Company, by various supplemental indentures, supplemental to
the Indenture, the last of which was dated June 1, 1997, has granted, bargained,
sold, aliened, remised, released, conveyed, confirmed, assigned, transferred and
set over unto the Trustee certain property of the Company acquired by it after
the execution and delivery of the Indenture; and
<PAGE>
3
WHEREAS, since the execution and delivery of said supplemental indenture
dated June 1, 1997, the Company has acquired property which, in accordance with
the provisions of the Indenture, is subject to the lien thereof and the Company
desires to confirm such lien; and
WHEREAS, the Indenture has been amended or supplemented from time to time;
and
WHEREAS, it is provided in the Indenture that no bonds other than those of
the 5 1/2% Series due 1959 therein authorized may be issued thereunder unless a
supplemental indenture providing for the issue of such additional bonds shall
have been executed and delivered by the Company to the Trustee; and
WHEREAS, the Company desires to provide for the issue of $250,000,000
principal amount of bonds secured by said Indenture of a series to be designated
as "First and Refunding Mortgage Bonds, Remarketable Series YY due 2023,
Mandatorily Tendered 2008" (hereinafter sometimes called "Series YY"); and
WHEREAS, the text of the bonds of the Series YY and of the certificates of
authentication to be borne by the bonds of the Series YY shall be substantially
of the following tenor:
[FORM OF BOND]
[FACE]
Registered Registered
Number Amount
RU $
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
FIRST AND REFUNDING MORTGAGE BOND,
REMARKETABLE SERIES YY DUE 2023.
Public Service Electric and Gas Company (hereinafter called the "Company"),
a corporation of the State of New Jersey, for value received, hereby promises to
pay to , or registered assigns, on the surrender hereof, the
principal sum of Dollars, on May 1, 2023 and to pay interest thereon
from the date hereof, at the rate of 6 3/8% per annum to May 1, 2008, and
commencing May 1, 2008, but only if not repurchased or redeemed by the Company,
at the rate per annum determined as more fully set forth on the reverse hereof,
and until payment of said principal sum, such interest to be computed on the
basis of a 360-day year of twelve 30-day months, payable May 1 and November 1 in
each year.
<PAGE>
4
Both the principal hereof and interest hereon shall be paid at the
corporate trust office of First Union National Bank, in the City of Newark,
State of New Jersey, or (at the option of the registered owner) at the corporate
trust office of First Chicago Trust Company of New York, in the Borough of
Manhattan, City and State of New York, in such coin or currency of the United
States of America as at the time of payment shall constitute legal tender for
the payment of public and private debts.
Reference is hereby made to the further provisions of this Bond set forth
on the reverse hereof and such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Bond shall not be entitled to any security or benefit under the
indenture mentioned on the reverse hereof, as amended and supplemented, and
shall not become valid or obligatory for any purpose, until the certificate of
authentication, hereon endorsed, shall have been signed by or on behalf of First
Union National Bank, as Trustee, or by or on behalf of its successor in trust
under said indenture.
IN WITNESS WHEREOF, the Company has caused this Bond to be duly executed by
its proper officers under its corporate seal.
Dated
PUBLIC SERVICE ELECTRIC AND GAS COMPANY,
By..............................
(Vice) President
(Seal)
Attest:
......................
(Assistant) Secretary
<PAGE>
5
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated therein which are
described in the within-mentioned indenture and supplemental indenture dated May
1, 1998, as secured thereby.
FIRST UNION NATIONAL BANK,
TRUSTEE
By........................
Authorized Signatory
[FORM OF ALTERNATE CERTIFICATE OF AUTHENTICATION]
ALTERNATE CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated therein which are
described in the within-mentioned indenture and supplemental indenture dated May
1, 1998, as secured thereby.
FIRST UNION NATIONAL BANK,
TRUSTEE
By.......................
Authenticating Agent
By.......................
Authorized Signatory
<PAGE>
6
[FORM OF BOND]
[REVERSE]
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
FIRST AND REFUNDING MORTGAGE BOND,
REMARKETABLE SERIES YY DUE 2023,
MANDATORILY TENDERED 2008.
This Bond is one of the First and Refunding Mortgage Bonds of the Company
issued and to be issued under and pursuant to, and all equally secured by, an
indenture of mortgage or deed of trust dated August 1, 1924, as supplemented and
amended by supplemental indentures thereto, including supplemental indentures
dated March 1, 1942, June 1, 1949, May 1, 1950, October 1, 1953, May 1, 1954,
November 1, 1956, September 1, 1957, August 1, 1958, June 1, 1959, September 1,
1960, August 1, 1962, June 1, 1963, September 1, 1964, September 1, 1965, June
1, 1967, June 1, 1968, April 1, 1969, March 1, 1970, May 15, 1971, November 15,
1971, April 1, 1972, March 1, 1974, October 1, 1974, April 1, 1976, September 1,
1976, October 1, 1976, June 1, 1977, September 1, 1977, November 1, 1978, July
1, 1979, September 1, 1979 (No. 1), September 1, 1979 (No. 2), November 1, 1979,
June 1, 1980, August 1, 1981, April 1, 1982, September 1, 1982, December 1,
1982, June 1, 1983, August 1, 1983, July 1, 1984, September 1, 1984, November 1,
1984 (No. 1), November 1, 1984 (No. 2), July 1, 1985, January 1, 1986, March 1,
1986, April 1, 1986 (No. 1), April 1, 1986 (No. 2), March 1, 1987, July 1, 1987
(No. 1), July 1, 1987 (No. 2), May 1, 1988, September 1, 1988, July 1, 1989,
July 1, 1990 (No. 1), July 1, 1990 (No. 2), June 1, 1991 (No. 1), June 1, 1991
(No. 2), November 1, 1991 (No. 1), November 1, 1991 (No. 2), November 1, 1991
(No. 3), February 1, 1992 (No. 1), February 1, 1992 (No. 2), June 1, 1992 (No.
1), June 1, 1992 (No. 2), June 1, 1992 (No. 3), January 1, 1993 (No. 1), January
1, 1993 (No. 2), March 1, 1993, May 1, 1993, May 1, 1993 (No. 2), May 1, 1993
(No. 3), July 1, 1993, August 1, 1993, September 1, 1993, September 1, 1993 (No.
2), November 1, 1993, February 1, 1994, March 1, 1994 (No. 1), March 1, 1994
(No. 2), May 1, 1994, June 1, 1994, August 1, 1994, October 1, 1994 (No. 1),
October 1, 1994 (No. 2), October 1, 1995 (No. 1), October 1, 1995 (No. 2),
January 1, 1996 (No. 1), January 1, 1996 (No. 2), December 1, 1996, April 1,
1997, June 1, 1997 and May 1, 1998, each duly executed by the Company and First
Union National Bank (formerly known as Fidelity Union Trust Company), a national
banking association organized under
<PAGE>
7
the laws of the United States of America, as Trustee. This Bond is one of the
Remarketable Series YY due 2023, Mandatorily Tendered 2008, which series is
limited to the aggregate principal amount of $250,000,000 and is issued
pursuant to said supplemental indenture dated May 1, 1998. Reference is hereby
made to said indenture and all supplements thereto for a specification of the
principal amount of Bonds from time to time issuable thereunder, and for a
description of the properties mortgaged and conveyed or assigned to said
Trustee or its successors, the nature and extent of the security, and the
rights of the holders of said Bonds and any coupons appurtenant thereto, and
of the Trustee in respect of such security.
In and by said indenture, as amended and supplemented, it is provided that
with the written approval of the Company and the Trustee, any of the provisions
of said indenture may from time to time be eliminated or modified and other
provisions may be added thereto provided the change does not alter the annual
interest rate, redemption price or date, date of maturity or amount payable on
maturity of any then outstanding Bond or conflict with the Trust Indenture Act
of 1939 as then in effect, and provided the holders of 85% in principal amount
of the Bonds secured by said indenture and then outstanding (including, if such
change affect the Bonds of one or more series but less than all series then
outstanding, a like percentage of the then outstanding Bonds of each series
affected by such change, and excluding Bonds owned or controlled by the Company
or by the parties owning at least 10% of the outstanding voting stock of the
Company, as more fully specified in said indenture) consent in writing thereto,
all as more fully set forth in said indenture, as amended and supplemented.
First and Refunding Mortgage Bonds issuable under said indenture are
issuable in series, and the Bonds of any series may be for varying principal
amounts and in the form of coupon bonds and of registered bonds without coupons,
and the Bonds of any one series may differ from the Bonds of any other series as
to date, maturity, interest rate and otherwise, all as in said indenture
provided and set forth. The Bonds of the Remarketable Series YY due 2023,
Mandatorily Tendered 2008, in which this Bond is included, are designated "First
and Refunding Mortgage Bonds, Remarketable Series YY due 2023, Mandatorily
Tendered 2008."
In case of the happening of an event of default as specified in said
indenture and said supplemental indenture dated March 1, 1942, the principal sum
<PAGE>
8
of the Bonds of this series may be declared or may become due and payable
forthwith, in the manner and with the effect in said indenture provided.
As more fully provided in said supplemental indenture dated May 1, 1998,
the Bonds of this series are subject to mandatory tender on May 1, 2008 (the
"Remarketing Date") to Citicorp Securities, Inc. (the "Remarketing Dealer") or
such successor or assign or other so designated pursuant to the Remarketing
Agreement dated May 14, 1998 between the Company and the Remarketing Dealer (the
"Remarketing Agreement") for purchase by the Remarketing Dealer at 100% of
principal amount, plus payment by the Company of accrued and unpaid interest to
the Remarketing Date, upon the Remarketing Dealer's election to remarket the
Bonds of this series, subject to the terms and conditions set forth in said
supplemental indenture dated May 1, 1998 and in the Remarketing Agreement. If
for any reason all Bonds of this series are not purchased by the Remarketing
Dealer on the Remarketing Date upon mandatory tender, the Company shall
repurchase the Bonds of this series as a whole on the Redemption Date at 100% of
the principal amount, plus all accrued and unpaid interest to the Remarketing
Date. If the Remarketing Dealer elects to remarket the Bonds of this series, the
Company may elect to exercise its right to redeem the Bonds of this series as a
whole on the Redemption Date at 100% of the principal amount, plus accrued and
unpaid interest to the date of redemption.
As more fully provided in said supplemental indenture dated May 1, 1998,
the Bonds of this series are subject to redemption at any time after the
Remarketing Date (as defined below) as a whole or in part, at the option of the
Company, at a redemption price equal to the greater of (i)100% of the principal
amount of the Bonds of this series to be redeemed and(ii) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Make-Whole Treasury Rate (as
defined in said supplemental indenture dated May 1, 1998) plus 12.5 basis
points, plus accrued interest thereon to the date of redemption.
As more fully provided in said supplemental indenture dated May 1, 1998,
the Bonds of this series are subject to redemption at any time prior to
maturity, on notice given as below provided by the application of proceeds of
released
<PAGE>
9
property or other money held by the Trustee and which, pursuant to the
provisions of said indenture, as amended and supplemented, is applied to the
redemption of Bonds of this series, upon payment of the "Special Redemption
Price" of 100% of the principal amount thereof, together in each case with
accrued interest to the date fixed for redemption. Notice of any such
redemption shall be given by mailing the same to the respective registered
owners of the Bonds of this series so called for redemption, not less than 30
nor more than 40 days in advance of the date fixed for redemption.
If this Bond or any portion thereof be called for redemption and payment be
duly provided therefor, interest shall cease to accrue on this Bond or such
portion on the date fixed for such redemption.
This Bond is transferable, but only as provided in said indenture, upon
surrender hereof, by the registered owner in person or by attorney duly
authorized in writing, at either of said offices where the principal hereof and
interest hereon are payable; upon any such transfer a new Bond similar hereto
will be issued to the transferee. No service charge shall be made for any such
transfer, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto. The
Company and the Trustee and any paying agent may deem and treat the person in
whose name this Bond is registered as the absolute owner hereof for the purpose
of receiving payment of or on account of the principal hereof and the interest
hereon and for all other purposes; and neither the Company nor the Trustee nor
any paying agent shall be affected by any notice to the contrary.
The Bonds of this series are issuable only in fully registered form, in
denominations of $1,000 and any multiple of $1,000. Such fully registered Bonds
of the several denominations may be exchanged for fully registered Bonds of
other authorized denominations, but only as provided in said indenture, upon
surrender thereof, by the registered owner in person or by attorney duly
authorized in writing, at either of said offices where the principal thereof and
interest thereon are payable. No service charge shall be made for any such
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto.
<PAGE>
10
The Company shall not be required to issue or make transfers or exchanges
of Bonds of this series for a period of ten days next preceding any interest
payment date or next preceding the date of any drawing of such Bonds to be
redeemed, and the Company shall not be required to make transfers or exchanges
of any such Bonds drawn in whole or in part for such redemption.
No recourse under or upon any obligation, covenant or agreement contained
in said indenture or in any indenture supplemental thereto, or in any Bond or
coupon issued thereunder, or because of any indebtedness arising thereunder,
shall be had against any incorporator, or against any past, present or future
stockholder, officer, or director, as such, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, it being expressly agreed and understood that said indenture, any
indenture supplemental thereto and the obligations issued thereunder, are solely
corporate obligations, and that no personal liability whatever shall attach to,
or be incurred by, such incorporators, stockholders, officers or directors, as
such, of the Company, or of any successor corporation, or any of them, because
of the incurring of the indebtedness thereby authorized, or under or by reason
of any of the obligations, covenants or agreements contained in the indenture or
in any indenture supplemental thereto or in any of the Bonds or coupons issued
thereunder, or implied therefrom.
----------
WHEREAS, the execution and delivery of this supplemental indenture have
been duly authorized by the Board of Directors of the Company; and
WHEREAS, the Company represents that all things necessary to make the bonds
of the series hereinafter described, when duly authenticated by or on behalf of
the Trustee and issued by the Company, valid, binding and legal obligations of
the Company, and to make this supplemental indenture a valid and binding
agreement supplemental to the Indenture, have been done and performed;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH that the Company, in
consideration of the premises and the execution and delivery by the Trustee of
this supplemental indenture, and in pursuance of the covenants and agreements
contained in the Indenture and for other good and valuable consideration, the
receipt of which is hereby acknowledged, has granted, bargained,
<PAGE>
11
sold, aliened, remised, released, conveyed, confirmed, assigned,
transferred and set over, and by these presents does grant, bargain, sell,
alien, remise, release, convey, confirm, assign, transfer and set over unto the
Trustee, its successors and assigns, forever, all the right, title and interest
of the Company in and to all property of every kind and description (except
cash, accounts and bills receivable and all merchandise bought, sold or
manufactured for sale in the ordinary course of the Company's business, stocks,
bonds or other corporate obligations or securities, other than such as are
described in Part V of the Granting Clauses of the Indenture, not acquired with
the proceeds of bonds secured by the Indenture, and except as in the Indenture
and herein otherwise expressly excluded) acquired by the Company since the
execution and delivery of the supplemental indenture dated June 1, 1997
subsequent to the Indenture (except any such property duly released from, or
disposed of, free from the lien of the Indenture, in accordance with the
provisions thereof) and all such property which at any time hereafter may be
acquired by the Company;
All of which property it is intended shall be included in and granted by
this supplemental indenture and covered by the lien of the Indenture as
heretofore and hereby amended and supplemented;
UNDER AND SUBJECT to any encumbrances or mortgages existing on property
acquired by the Company at the time of such acquisition and not heretofore
discharged of record; and
SUBJECT also, to the exceptions, reservations and provisions in the
Indenture and in this supplemental indenture recited, and to the liens,
reservations, exceptions, limitations, conditions and restrictions imposed by or
contained in the several deeds, grants, franchises and contracts or other
instruments through which the Company acquired or claims title to the aforesaid
property; and SUBJECT, also, to the existing leases, to liens on easements or
rights of way, to liens for taxes, assessments and governmental charges not in
default or the payment of which is deferred, pending appeal or other contest by
legal proceedings, pursuant to Section 4 of Article Five of the Indenture, or
the payment of which is deferred pending billing, transfer of title or final
determination of amount, to easements for alleys, streets, highways, rights of
way and railroads that may run across or encroach upon the said property, to
joint pole and similar agreements, to undetermined liens and charges, if any,
incidental to construction, and other encumbrances permitted by the Indenture as
heretofore and hereby amended and supplemented;
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TO HAVE AND TO HOLD the property hereby conveyed or assigned, or intended
to be conveyed or assigned, unto the Trustee, its successor or successors and
assigns, forever;
IN TRUST, NEVERTHELESS, upon the terms, conditions and trusts set forth in
the Indenture as heretofore and hereby amended and supplemented, to the end that
the said property shall be subject to the lien of the Indenture as heretofore
and hereby amended and supplemented, with the same force and effect as though
said property had been included in the Granting Clauses of the Indenture at the
time of the execution and delivery thereof;
AND THIS SUPPLEMENTAL INDENTURE FURTHER WITNESSETH that for the
considerations aforesaid, it is hereby covenanted between the Company and the
Trustee as follows:
ARTICLE I.
BONDS OF THE SERIES YY
The series of bonds authorized by this supplemental indenture to be issued
under and secured by the Indenture shall be designated "First and Refunding
Mortgage Bonds, Remarketable Series YY due 2023, Mandatorily Tendered 2008";
shall be limited to the aggregate principal amount of $250,000,000; shall mature
May 1, 2023; shall bear interest at the rate of 6 3/8% per annum to May 1, 2008,
and commencing May 1, 2008, but only if not repurchased or redeemed by the
Company, at the Interest Rate to Maturity determined as set forth below in
Section 2.01 and until payment of said principal sum, such interest to be
computed on the basis of a 360-day year of twelve 30-day months, payable on May
1 and November 1 of each year; shall be payable as to both principal and
interest in such coin or currency of the United States of America as at the time
of payment shall constitute legal tender for the payment of public and private
debts, at the corporate trust office of First Union National Bank, in the City
of Newark, State of New Jersey, or, as may be desired by the persons entitled to
receive such principal and interest respectively, at the corporate trust office
of First Chicago Trust Company of New York, in the Borough of Manhattan, City
and State of New York; shall be issuable only in the form of fully registered
bonds in the denominations of $1,000 and any multiple of $1,000; and the several
denominations shall be interchangeable. The date of each bond of the Series YY
shall be the semi-annual interest payment date next preceding the date of
authentication, unless
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13
such date of authentication be an interest payment date, in which case the
date shall be the date of authentication, or unless such date of authentication
be prior to the first semi-annual interest payment date, in which case the date
shall be May 1, 1998.
The Company shall not be required to issue or make transfers or exchanges
of bonds of the Series YY for a period of ten days next preceding any interest
payment date or next preceding the date of any drawing of such bonds to be
redeemed, and the Company shall not be required to make transfers or exchanges
of any such bonds drawn in whole or in part for such redemption.
The bonds of the Series YY shall be issuable in fully registered global
book-entry form and shall initially be registered in the name of The Depository
Trust Company ("DTC"), or its nominee who is hereby designated as "Holder." As
long as DTC's nominee holds the certificates representing any bonds of the
Series YY in the book-entry system of DTC, no certificates for such bonds of the
Series YY will be delivered by any selling Beneficial Owner (as defined below)
to reflect any transfer of such bonds of the Series YY.
ARTICLE II
MANDATORY TENDER, REMARKETING AND REPURCHASE OF BONDS OF SERIES YY
SECTION 2.01. Mandatory Tender and Remarketing. The bonds of the Series YY
are subject to mandatory tender on May 1, 2008 (the "Remarketing Date") to
Citicorp Securities, Inc. (the "Remarketing Dealer") or such successor or assign
or other so designated pursuant to the Remarketing Agreement dated May 14, 1998
between the Company and the Remarketing Dealer (the "Remarketing Agreement") for
the purchase by the Remarketing Dealer at 100% of principal amount, plus payment
by the Company of accrued and unpaid interest to the Remarketing Date, upon the
Remarketing Dealer's election to remarket the bonds of the Series YY, subject to
the terms and conditions set forth herein and in the Remarketing Agreement.
On a Business Day (as defined below) not later than five Business Days
prior to the Remarketing Date, the Remarketing Dealer shall notify the Company
and the Trustee as to whether it elects to purchase the bonds of the Series YY
on the Remarketing Date (the "Notification Date"). If, and only if, the
Remarketing Dealer so elects, the bonds of the Series YY shall be subject to
mandatory tender to the Remarketing Dealer for remarketing on the Remarketing
Date, subject to the conditions described herein.
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Subject to the Remarketing Dealer's election to remarket the bonds of the
Series YY as provided above, the Interest Rate to Maturity shall be determined
by the Remarketing Dealer by 3:30 p.m., New York City time, on the third
Business Day preceding the Remarketing Date (the "Determination Date") to the
nearest one hundred-thousandth (0.00001) of one percent per annum, and will be
equal to the sum of 5.66% (the "Base Rate") plus the Applicable Spread (as
defined below), which will be based on the Dollar Price (as defined below) of
the bonds of the Series YY.
The "Applicable Spread" will be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the bonds of the Series YY at the Dollar Price,
but assuming (i) an issue date equal to the Remarketing Date, with settlement on
such date without accrued interest,(ii) a maturity date equal to the Stated
Maturity Date of the bonds of the Series YY, and (iii) a stated annual interest
rate, payable semiannually on each Interest Payment Date for the bonds of the
Series YY, equal to the Base Rate plus the spread bid by the applicable
Reference Corporate Dealer. If fewer than five Reference Corporate Dealers bid
as described above, then the Applicable Spread shall be the lowest of such bid
indications obtained as described above. The Interest Rate to Maturity announced
by the Remarketing Dealer, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners (as defined below) and Holders of the
bonds of the Series YY, the Company and the Trustee.
"Beneficial Owner" means any person who acquires an interest in the bonds
of the Series YY which is reflected on the records of DTC through its
participants.
"Business Day" means any day other than a Saturday, Sunday or a day on
which banking institutions in The City of New York are authorized or obligated
by law, executive order or government holiday to be closed.
"Dollar Price" means, with respect to the bonds of the Series YY, the
present value determined by the Remarketing Dealer, as of the Remarketing Date,
of the Remaining Scheduled Payments (as defined below) discounted to the
Remarketing Date, on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months), at the Treasury Rate (as defined below).
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15
"Reference Corporate Dealers" mean leading dealers of publicly traded debt
securities of the Company in The City of New York (which may include the
Remarketing Dealer or one of its affiliates) selected by the Remarketing Dealer
and acceptable to the Company, which acceptance shall not be unreasonably
withheld.
"Treasury Rate" means, with respect to the Remarketing Date, the rate per
annum equal to the semi-annual equivalent yield to maturity for Comparable
Treasury Issues (as defined below), assuming a price for the Comparable Treasury
Issues (expressed as a percentage of its principal amount), equal to the
Comparable Treasury Price (as defined below) for the Remarketing Date.
"Comparable Treasury Issues" means the on-the-run 10-year United States
Treasury security or securities.
"Comparable Treasury Price" means, with respect to the Remarketing Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500), or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on the Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for the Remarketing Date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, or (ii) if the Remarketing
Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations. "Telerate Page 500"
means the display designated as "Telerate Page 500" on Dow Jones Markets Limited
(or such other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in (a) above as may replace
Dow Jones Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted to the Remarketing Dealer by such Reference Treasury
Dealer by 3:30 p.m., New York City time, on the Determination Date.
"Reference Treasury Dealer" means any primary U.S. Government securities
dealer in The City of New York (a "Primary Treasury Dealer", selected by the
Remarketing Dealer and acceptable to the Company, which acceptance shall not be
unreasonably withheld.
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"Remaining Scheduled Payments" means, with respect to the Bonds, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date, as determined by the Remarketing
Dealer.
Subject to the Remarketing Dealer's election to remarket the Bonds as
provided above, the Remarketing Dealer shall notify the Company, the Trustee and
DTC by telephone, confirmed in writing (which may include facsimile or other
electronic transmission), by 4:00 p.m., New York City time, on the Determination
Date of the Interest Rate to Maturity applicable to the bonds of the Series YY
effective from and including the Remarketing Date.
In the event that the Bonds are remarketed as provided herein, the
Remarketing Dealer shall make, or cause the Trustee to make, from funds provided
to it by the Remarketing Dealer, payment to the DTC Participant of each
tendering Beneficial Owner of bonds of the Series YY subject to remarketing, by
book entry through DTC by the close of business on the Remarketing Date against
delivery through DTC of such Beneficial Owner's tendered bonds of the Series YY,
of 100% of the principal amount of the tendered bonds of the Series YY that have
been purchased for remarketing by the Remarketing Dealer. The Company shall
make, or cause the Trustee to make, from funds provided to it by the Company,
payment of interest to each Beneficial Owner of bonds of the Series YY due on
the Remarketing Date by book entry through DTC by the close of business on the
Remarketing Date.
SECTION 2.02. Repurchase and Redemption. Subject to Section 11(c) of the
Remarketing Agreement, in the event that (i) the Remarketing Dealer for any
reason does not notify the Company of the Interest Rate to Maturity by 4:00
p.m., New York City time, on the Determination Date, or (ii) prior to the
Remarketing Date, the Remarketing Dealer has resigned and no successor has been
appointed on or before the Determination Date, or (iii) the Remarketing Dealer
has terminated the Remarketing Agreement pursuant to Section 8 or Section 11
thereof at any time after the Remarketing Dealer elects on the Notification Date
to remarket the bonds of the Series YY, or (iv) the Remarketing Dealer for any
reason does not elect, by notice to the Company, and the Trustee not later that
the Notification Date, to purchase the bonds of the Series YY for remarketing on
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17
the Remarketing Date, or (v) the Remarketing Dealer for any reason does not
purchase all tendered bonds of the Series YY on the Remarketing Date, the
Company shall repurchase the bonds of the Series YY as a whole on the
Remarketing Date at a price equal to 100% of the principal amount of the bonds
of the Series YY plus all accrued and unpaid interest, if any, on the bonds of
the Series YY to the Remarketing Date. In any such case, payment will be made by
the Company through the Trustee to the DTC Participant of each tendering
Beneficial Owner of bonds of the Series YY, by book-entry through DTC by the
close of business on the Remarketing Date against delivery through DTC of such
Beneficial Owner's tendered bonds of the Series YY.
If the Remarketing Dealer elects to remarket the bonds of the Series YY as
provided above, then not later than the Business Day immediately preceding the
Determination Date, the Company shall notify the Remarketing Dealer and the
Trustee if the Company irrevocably elects to exercise its right to redeem the
bonds of the Series YY, in whole but not in part, from the Benefecial Owners on
the Remarketing Date at the Optional Redemption Price, plus accrued and unpaid
interest to the date of redemption. The "Optional Redemption Price" shall be
100% of the principal amount of the bonds of the Series YY. If the Company
elects to redeem the bonds of the Series YY, the obligation of the Remarketing
Dealer to repurchase and remarket the bonds of the Series YY shall terminate
irrevocably, and the Company shall pay (i) the Optional Redemption Price
therefor, plus accrued and unpaid interest to the date of redemption, in
same-day funds by wire transfer to the Trustee for payment to each Beneficial
Owner of bonds of the Series YY due on the Remarketing Date and (ii) the excess
of the Dollar Price over the sum of (a) the Optional Redemption Price and (b)
accrued and unpaid interest to the date of redemption in same-day funds by wire
transfer to the Remarketing Dealer on the Remarketing Date.
SECTION 2.03. Tender and Settlement Procedures. All of the tendered bonds
of the Series YY will be automatically delivered to the account of the Trustee,
by book-entry through DTC pending payment of the purchase price therefor, on the
Remarketing Date.
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The transactions described herein will be executed on the Remarketing Date
through DTC in accordance with the procedures of DTC and the accounts of the
respective DTC Participants will be debited and credited and the bonds of the
Series YY delivered by book-entry as necessary to effect the purchases and
sales thereof.
Transactions involving the sale and purchase of the Series YY Bonds
remarketed by the Remarketing Dealer on and after the Remarketing Date will
settle in immediately available funds through DTC's Same-Day Funds Settlement
System.
The Remarketing Dealer may, in accordance herewith, modify the tender and
settlement procedures set forth herein in order to facilitate the tender and
settlement process.
The tender and settlement procedures described above, including provisions
for payment by purchasers of bonds of the Series YY in the remarketing or for
payment to selling Beneficial Owners of tendered bonds of the Series YY, may be
modified to the extent required by DTC or, if agreed to by the Remarketing
Dealer in accordance with Section 8(b)(viii) of the Remarketing Agreement, to
the extent required to facilitate the tender and remarketing of bonds of the
Series YY in certificated form, if the book-entry system is no longer available
for the bonds of the Series YY at the time of the remarketing.
SECTION 2.04. Termination of the Remarketing Agreement. The Remarketing
Agreement shall terminate as to the Remarketing Dealer on the effective date of
the resignation of the Remarketing Dealer pursuant to Section 6 thereof or the
repurchase of the bonds of the Series YY by the Company pursuant to Section 4(g)
thereof or the redemption of the bonds of the Series YY by the Company pursuant
to Section 4(h) thereof.
In addition, the Remarketing Dealer may terminate all of its obligations
under the Remarketing Agreement immediately by notifying the Company and the
Trustee of its election to do so, at any time on or before the Remarketing Date,
in the event that:(i) any of the conditions referred to or set forth in Section
8(a) thereof have not been met or satisfied in full, (ii) any of the events set
forth in Section 8(b) thereof shall have occurred at any time; provided,
however, that in the case of a mandatory redemption of the bonds of the Series
YY pursuant to Section 4C of Article Eight of the Indenture, the Remarketing
Dealer may not terminate its obligation under the Remarketing Agreement in the
event such a mandatory redemption occurs prior to the Notification Date unless
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19
greater than 80% of the bonds of the Series YY have been redeemed or called for
redemption or (iii) the Remarketing Dealer determines, in its sole discretion,
after consultation with the Company, that it shall not have received all of the
information, whether or not specifically referenced therein, necessary to
fulfill its obligations under the Remarketing Agreement.
Notwithstanding any provision therein to the contrary, in lieu of
terminating the Remarketing Agreement pursuant to Section 11(b) thereof, upon
the occurrence of any of the events set forth therein, the Remarketing Dealer,
in its sole discretion at any time between the Determination Date and 3:30 p.m.,
New York City time, on the Business Day immediately preceding the Remarketing
Date, may elect to purchase the bonds of the Series YY for remarketing and
determine a new Interest Rate to Maturity in the manner provided in Section 4(d)
of the Remarketing Agreement, except that for purposes of determining the new
Interest Rate to Maturity pursuant to this paragraph the Determination Date
referred to therein shall be the date of such election and redetermination. The
Remarketing Dealer shall notify the Company, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 4:00 p.m., New York City time, on the date of such election,
of the new Interest Rate to Maturity applicable to the bonds of the Series YY.
Thereupon, such new Interest Rate to Maturity shall supersede and replace any
Interest Rate to Maturity previously determined by the Remarketing Dealer and,
absent manifest error, shall be binding and conclusive upon the Beneficial
Owners and Holders of the bonds of the Series YY on or after the Remarketing
Date, the Company and the Trustee; provided, however, that the Remarketing
Dealer, by redetermining the Interest Rate to Maturity upon the occurrence of
any event set forth in Section 11(b) as set forth above, shall not thereby be
deemed to have waived its right to determine a new Interest Rate to Maturity or
terminate the Remarketing Agreement upon the occurrence of any other event set
forth in Section 11(b) thereof.
ARTICLE III.
REDEMPTION OF BONDS OF SERIES YY.
SECTION 3.01. Redemption - Redemption Prices. Bonds of the Series YY shall
be subject to redemption:
(a) at any time after the Remarketing Date as a whole or in part, at the
option of the Company, at a redemption price equal to the greater of (i)100% of
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the principal amount of the Series YY Bonds to be redeemed and (ii) the sum
of the present values of the remaining scheduled payments of principal and
interest thereon discounted to the redemption date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Make-Whole Treasury Rate plus 12.5 basis points, plus accrued interest thereon
to the date of redemption; and
"Make-Whole Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Make-Whole Comparable Treasury Issue, assuming a price for the Make-Whole
Comparable Treasury Issue (expressed as percentage of its principal amount)
equal to the Make-Whole Comparable Treasury Price for such redemption date, in
each case calculated on the third business day preceding such redemption date;
"Make-Whole Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Series YY Bonds to be redeemed that
would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such Series YY Bonds;
"Make-Whole Independent Investment Banker" means one of the Make-Whole
Reference Treasury Dealers appointed by the Company and acceptable to the
Trustee;
"Make-Whole Comparable Treasury Price" means, with respect to any
redemption date, (i) the yield, under the heading which represents the average
for the immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities",
for the maturity comparable to the remaining term of the Bonds of this series to
be redeemed or (ii) if such release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the Trustee shall seek at least five Make-Whole Reference Treasury Dealer
Quotations and the Make-Whole Comparable Treasury Price will be (A) the average
of the Make-Whole Reference Treasury Dealer Quotations for such redemption date,
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21
after excluding the highest and lowest such Make-Whole Reference Treasury
Dealer Quotations, or (B) if the Trustee is unable to obtain five such
Make-Whole Reference Treasury Dealer Quotations, the average of all such
Make-Whole Reference Treasury Dealer Quotations so obtained; "Make-Whole
Reference Treasury Dealer Quotations" means, with respect to each Make-Whole
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Make-Whole Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Make-Whole Treasury Reference Dealer at 5:00
p.m., New York City time, on the third business day preceding such redemption
date;
"Make-Whole Reference Treasury Dealer" means a primary U.S. Government
Securities Dealer in New York City selected by the Company and acceptable to the
Trustee; and
(b) at any time in whole or in part by the application of any proceeds of
released property or other money held by the Trustee and which, pursuant to
Section 4C of Article Eight of the Indenture, as amended and supplemented, is
applied to the redemption of bonds of the Series YY, upon payment of 100% of the
principal amount thereof specified as the "Special Redemption Price" in the Form
of Bond hereinbefore set forth together with accrued interest to the date fixed
for redemption.
SECTION 3.02. Redemption at Election of Company. The election of the
Company to redeem any of the bonds of the Series YY pursuant to Section 3.01
hereof shall be evidenced by a resolution of the Board of Directors of the
Company calling for redemption on a stated date all or a stated principal amount
thereof. Any such call may be conditioned upon the deposit with the Trustee, on
or before such redemption date, of the total regular redemption price of the
bonds so called, with accrued interest thereon to the redemption date. At least
40 days prior to such redemption date (or at such later time as shall be
satisfactory to the Trustee) the Company shall file with the Trustee a certified
copy of such resolution. Unless such call shall be conditioned upon the deposit
of the regular redemption price and accrued interest with the Trustee on or
before the redemption date and unless the notice below provided for shall so
state, the Company shall on or before such redemption date deposit with the
Trustee the total regular redemption price of all the bonds so called, with
accrued interest thereon to the redemption date.
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If the Company elects to redeem less than all of the bonds of the Series
YY, the particular bonds or portions thereof to be redeemed shall, upon request
of the Company, be drawn by lot by the Trustee, according to such method as it
shall deem proper, from the bonds of said series then outstanding. The Trustee
shall certify to the Company the serial numbers of the bonds so drawn.
The Company shall thereupon give notice of such redemption, in the manner
and substantially in the form provided in Section 3.03 hereof to be given in the
case of bonds of the Series YY called pursuant to Section 4C of Article Eight of
the Indenture, except that (1) such notice shall state that the bonds specified
have been called for redemption at the election of the Company, and that they
will be payable on the date specified in the resolution of the Board of
Directors of the Company at a stated amount (which shall be the regular
redemption price applicable upon such redemption date), (2) if all the bonds of
the Series YY be called, the notice shall so state and may omit the serial
numbers thereof, (3) if the date fixed for redemption be other than an interest
payment date, the notice shall state that the bonds will be payable at the
stated redemption price, plus accrued interest to the redemption date, (4) the
mailing of such notice to registered owners of bonds of said series shall take
place not less than 30 nor more than 40 days in advance of the date fixed for
redemption, but failure duly to give such notice of redemption to the registered
owner of any bond called for redemption in whole or in part shall not affect the
validity of the proceedings for the redemption of any other bond, and (5) if the
call of such bonds for redemption shall have been conditioned upon the deposit
of the regular redemption price and accrued interest with the Trustee on or
before the redemption date, as above permitted, the notice shall so state, and
shall state that unless such deposit is made on or before such date the call for
redemption and the notice shall be of no effect.
Before any money shall be applied by the Trustee to the redemption of bonds
under this Section, the Company shall deliver to the Trustee a certificate or
opinion by the President or a Vice President of the Company and an opinion of
counsel, stating that all conditions precedent provided for herein (including
any covenants compliance with which constitutes a condition precedent) relating
to such redemption have been complied with.
SECTION 3.03. Redemptions Pursuant to Section 4C of Article Eight of the
Indenture. If, pursuant to Section 4C of Article Eight of the Indenture, as
amended and supplemented, any proceeds of released property or other money then
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23
held by the Trustee shall be applied to the redemption of bonds of the
Series YY, the Trustee, not later than 30 days prior to the applicable
redemption date, shall draw by lot according to such methods as it shall deem
proper, from all the bonds of the Series YY then outstanding, such principal
amount thereof as is to be redeemed. Bonds of said series so redeemed shall be
cancelled.
After such drawing the Trustee shall, beginning not later than 30 nor
earlier than 40 days in advance of the date fixed for redemption, give, in the
name of the Company, notice by mail that bonds of the Series YY bearing the
serial numbers specified have been called for redemption pursuant to said
Section 4C of Article Eight, that they will be due and payable on such
redemption date, at the office of the Trustee in Newark, New Jersey, or (at the
option of the holder) at the office or agency of the Company in the Borough of
Manhattan, City and State of New York, at a stated amount (which shall be the
Special Redemption Price of 100% of the principal amount thereof), that, if the
date fixed for redemption be other than an interest payment date, the bonds will
be payable at the stated redemption price, plus accrued interest to the
redemption date, and that all interest thereon will cease to accrue after said
date. Such notice shall be mailed to the several registered owners of the bonds
so called, at their respective addresses as the same may appear on the registry
books. Failure duly to give such notice of redemption to the registered owner of
any bond called for redemption in whole or in part shall not affect the validity
of the proceedings for the redemption of any other bond.
SECTION 3.04. Called Bonds to be Surrendered -- Interest to Cease. Each
bond or portion thereof of the Series YY so called under Section 3.02 or 3.03
hereof shall be due and payable (upon surrender thereof) at the places and price
and on the date specified in such notice, anything herein or in such bond to the
contrary notwithstanding. From and after the date when each bond or portion
thereof of the Series YY shall be due and payable as aforesaid (unless upon said
date the full amount due thereon shall not be held by the Trustee and be
immediately available for payment), all further interest shall cease to accrue
on such bond or on such portion thereof, as the case may be.
SECTION 3.05. Bonds Called in Part. If only a portion of any bond of the
Series YY shall be drawn by lot by the Trustee pursuant to Section 3.02 or 3.03
hereof, the notice of redemption hereinbefore provided for shall specify the
serial number of such bond and the portion of the principal amount thereof to be
redeemed.
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Upon surrender of such bond for partial redemption and upon payment of the
portion so called for redemption, a new bond or bonds of the Series YY, in
aggregate principal amount equal to the unredeemed portion of such surrendered
bond, shall be executed by the Company, authenticated by or on behalf of the
Trustee, and delivered to the registered owner thereof, without expense to such
owner.
SECTION 3.06. Provisions of Indenture Not Applicable. There shall be no
sinking fund for the bonds of Series YY.
ARTICLE IV.
MISCELLANEOUS.
SECTION 4.01. Authentication of Bonds of Series YY. None of the bonds of
the Series YY, the issue of which is provided for by this supplemental
indenture, shall be authenticated by or on behalf of the Trustee except in
accordance with the provisions of the Indenture, as amended and supplemented,
and this supplemental indenture, and upon compliance with the conditions in that
behalf therein contained.
SECTION 4.02. Authenticating Agent. As long as any of the bonds of the
Series YY remain outstanding, the Trustee may appoint an authenticating agent to
act on its behalf and subject to its direction in connection with the
authentication of bonds of the Series YY. Such authenticating agent shall be
appointed by the Trustee by an instrument in writing and shall have no
responsibility or liability for any action taken by it at the direction of the
Trustee. Such authenticating agent shall at all times be a corporation organized
and doing business under the laws of the United States or of any State or
Territory or of the District of Columbia authorized under such laws to act as
authenticating agent, having a combined capital and surplus of at least
$5,000,000, subject to supervision or examination by Federal, State,
Territorial, or District of Columbia authority and, if there be such a
corporation willing and able to act as authenticating agent on reasonable and
customary terms, having its principal office and place of business in the City
<PAGE>
25
of New York. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 4.02 the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion, or consolidation to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate agency business
of any authenticating agent, shall continue to be the authenticating agent
without the execution or filing of any paper or any further act on the part of
the Trustee or the authenticating agent.
Any authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any authenticating agent by giving written notice of
termination to such authenticating agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible in accordance with the
provisions of this Section 4.02, the Trustee may appoint a successor
authenticating agent. The Trustee shall give written notice of such appointment
to the Company and shall mail notice of such appointment to all registered
owners of the bonds of the Series YY, at their respective addresses as the same
may appear on the registry books. Any successor authenticating agent, upon
acceptance of its appointment, shall become vested with all the rights, powers,
duties and responsibilities of its predecessor, with like effect as if
originally appointed authenticating agent. No successor authenticating agent
shall be appointed unless eligible under the provisions of this Section 4.02.
The Trustee agrees to pay to the authenticating agent from time to time
reasonable compensation for its services, and the Trustee shall be entitled to
be reimbursed for such payments as provided in the Indenture.
SECTION 4.03. Additional Restrictions on Authentication of Additional Bonds
Under Indenture. The Company covenants that from and after the date of execution
of this supplemental indenture, no additional bonds (as defined in Section 1 of
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26
Article Two of the Indenture) shall be authenticated and delivered by the
Trustee under Subdivision A of Section 4 of said Article Two on account
of additions or improvements to the mortgaged property:
(1) unless the net earnings of the Company for the period required by
Subdivision C of Section 6 of said Article Two shall have been at least twice
the fixed charges (in lieu of 1 3/4 times such fixed charges, as required by
said Subdivision C); and for the purpose of this condition (a) such fixed
charges shall in each case include interest on the bonds applied for,
notwithstanding the parenthetical provision contained in clause (4) of said
Subdivision C, and (b) in computing such net earnings there shall be included in
expenses of operation (under paragraph (c) of said Subdivision C) all charges
against earnings for depreciation, renewals or replacements, and all
certificates with respect to net earnings delivered to the Trustee in connection
with any authentication of additional bonds under said Article Two shall so
state; and
(2) except to the extent of 60% (in lieu of 75% as permitted by Subdivision
A of Section 7 of said Article Two) of the cost or fair value to the Company of
the additions or improvements forming the basis for such authentication of
additional bonds.
SECTION 4.04. Restriction on Dividends. The Company will not declare or pay
any dividend on any shares of its common stock (other than dividends payable in
shares of its common stock) or make any other distribution on any such shares,
or purchase or otherwise acquire any such shares (except shares acquired without
cost to the Company) whenever such action would reduce the earned surplus of the
Company to an amount less than $10,000,000 or such lesser amount as may remain
after deducting from said $10,000,000 all amounts appearing in the books of
account of the Company on December 31, 1948, which shall thereafter, pursuant to
any order or rule of any regulatory body entered after said date, be required to
be removed, in whole or in part, from the books of account of the Company by
charges to earned surplus.
SECTION 4.05. Use of Facsimile Seal and Signatures. The seal of the Company
and any or all signatures of the officers of the Company upon any of the bonds
of the Series YY may be facsimiles.
SECTION 4.06. Time for Making Payment. All payments of principal or
redemption price of, interest on and sinking or improvement fund installments
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27
for, the bonds of the Series YY shall be made either prior to the due date
thereof, or on the due date thereof in immediately available funds. In any case
where the date of any such payment shall be a Saturday or Sunday or a legal
holiday or a day on which banking institutions in the city of payment are
authorized by law to close, then such payment need not be made on such date but
may be made on the next succeeding business day with the same force and effect
as if made on the due date, and no interest on such payment shall accrue for the
period after such date.
SECTION 4.07. Effective Period of Supplemental Indenture. The preceding
provisions of Articles I, II, III and IV of this supplemental indenture shall
remain in effect only so long as any of the bonds of the Series YY shall remain
outstanding.
SECTION 4.08. Effect of Approval of Board of Public Utilities of the State
of New Jersey. The approval of the Board of Public Utilities of the State of New
Jersey of the execution and delivery of these presents and of the issue of any
bonds of the Series YY shall not be construed as approval of said Board of any
other act, matter or thing which requires approval of said Board under the laws
of the State of New Jersey.
SECTION 4.09. Execution in Counterparts. For the purpose of facilitating
the recording hereof, this supplemental indenture has been executed in several
counterparts, each of which shall be and shall be taken to be an original, and
all collectively but one instrument.
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28
IN WITNESS WHEREOF, Public Service Electric and Gas Company, party hereto
of the first part, after due corporate and other proceedings, has caused this
supplemental indenture to be signed and acknowledged or proved by its President
or one of its Vice Presidents and its corporate seal hereunto to be affixed and
to be attested by the signature of its Secretary or an Assistant Secretary; and
First Union National Bank, as Trustee, party hereto of the second part, has
caused this supplemental indenture to be signed and acknowledged or proved by
one of its Vice Presidents and its corporate seal to be hereunto affixed and to
be attested by the signature of one of its Vice Presidents. Executed and
delivered this 8th day of May, 1998.
PUBLIC SERVICE ELECTRIC AND GAS COMPANY
By MORTON A. PLAWNER
(Morton A. Plawner)
Vice President
Attest:
PATRICK M. BURKE
(P.M. Burke)
Assistant Secretary
(CORPORATE SEAL)
FIRST UNION NATIONAL BANK
By F. GALLAGHER
(F. Gallagher)
Vice President
Attest:
J. WATERS
(J. Waters)
Vice President
(CORPORATE SEAL)
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29
STATE OF NEW JERSEY }
COUNTY OF ESSEX } ss.:
BE IT REMEMBERED, that on this 8th day of May, before me, the subscriber, a
Notary Public of the State of New Jersey, personally appeared M. A. Plawner who,
I am satisfied, is a Vice President of PUBLIC SERVICE ELECTRIC AND GAS COMPANY,
one of the corporations named in and which executed the foregoing instrument,
and is the person who signed the said instrument as such officer, for and on
behalf of such corporation, and I having first made known to him the contents
thereof, he did acknowledge that he signed the said instrument as such officer,
that the said instrument was made by such corporation and sealed with its
corporate seal, that the said instrument is the voluntary act and deed of such
corporation, made by virtue of authority from its Board of Directors, and that
said corporation, the mortgagor, has received a true copy of said instrument.
CATHERINE M. GOLDA
Catherine M. Golda
A Notary Public of New Jersey
My Commission Expires 5-14-2000
STATE OF NEW JERSEY }
COUNTY OF ESSEX } ss.:
BE IT REMEMBERED, that on this 8th day of May, before me, the subscriber, a
Notary Public of the State of New Jersey, personally appeared F. Gallagher who,
I am satisfied, is a Vice President of FIRST UNION NATIONAL BANK, one of the
corporations named in and which executed the foregoing instrument, and is the
person who signed the said instrument as such officer, for and on behalf of such
corporation, and I having first made known to him the contents thereof, he did
acknowledge that he signed the said instrument as such officer, that the said
instrument was made by such corporation and sealed with its corporate seal, and
that the said instrument is the voluntary act and deed of such corporation, made
by virtue of authority from its Board of Directors.
JACQUELYN E. COYLE
Jacquelyn E. Coyle
Notary Public of New Jersey
My Commission Expires July 22, 2002
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30
CERTIFICATE OF RESIDENCE
First Union National Bank, Mortgagee and Trustee within named, hereby
certifies that its precise residence is 765 Broad Street, Newark, New Jersey
07101.
FIRST UNION NATIONAL BANK
By F. GALLAGHER
(F. Gallagher)
Vice President
