EXHIBIT 1A
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(a New Jersey corporation)
Debt Securities
UNDERWRITING AGREEMENT
[Date]
[Underwriter Name and Address]
Ladies and Gentlemen:
Public Service Enterprise Group Incorporated, a New Jersey corporation
("PSEG"), proposes to issue and sell up to [$____________] aggregate initial
public offering price of its senior or subordinated debt securities (the "Debt
Securities"), from time to time, in or pursuant to one or more offerings on
terms to be determined at the time of sale.
The Debt Securities will be issued in one or more series as senior
indebtedness (the "Senior Debt Securities") under an indenture, dated as of
November 1, 1998 (the "Senior Indenture"), between PSEG and First Union National
Bank, as trustee (the "Senior Trustee"), or as subordinated indebtedness (the
"Subordinated Debt Securities") under an indenture, to be entered into as of the
date of execution (the "Subordinated Indenture", and collectively with the
Senior Indenture, the "Indentures", and each, an "Indenture"), between PSEG and
First Union National Bank, as trustee (the "Subordinated Trustee", and
collectively with the Senior Trustee, the "Trustees", and each, a "Trustee").
Each series of Debt Securities may vary, as applicable, as to title, aggregate
principal amount, rank, interest rate or formula and timing of payments thereof,
stated maturity date, redemption and/or repayment provisions, sinking fund
requirements, conversion provisions and any other variable terms established by
or pursuant to the applicable Indenture.
As used herein, "Securities" shall mean the Senior Debt Securities and the
Subordinated Debt Securities initially issuable by PSEG.
Whenever PSEG determines to make an offering of Securities through
Underwriter Name ("NAME"), or through an underwriting syndicate managed by NAME,
PSEG will enter into an agreement (each, a "Terms Agreement") providing for the
sale of such Securities to, and the purchase and offering thereof by, NAME and
such other underwriters, if any, selected by NAME (the "Underwriters", which
term shall include NAME, whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of Securities
shall specify the aggregate principal amount of Securities to be initially
issued (the "Initial Underwritten Securities"), the name of each Underwriter
participating in such offering (subject to substitution as provided in
Section 10 hereof) and the name of any Underwriter other than NAME acting as
co-manager in connection with such offering, the aggregate principal amount of
Initial Underwritten Securities which each such Underwriter severally agrees to
purchase, whether such offering is on a fixed or variable price basis and, if on
a fixed price basis, the initial offering price, the price at which the Initial
Underwritten Securities are to be purchased by the Underwriters, the form, time,
date and place of delivery and payment of the Initial Underwritten Securities
and any other material variable terms of the Initial Underwritten Securities. In
addition, if applicable, such Terms Agreement shall specify whether PSEG has
agreed to grant to the Underwriters an option to purchase additional Securities
to cover over-allotments, if any, and the aggregate principal amount of
Securities subject to such option (the "Option Underwritten Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of any Option Underwritten
Securities. The Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between PSEG and NAME, acting for itself and, if
applicable, as representative of any other Underwriters. Each offering of
Underwritten Securities through NAME as sole Underwriter or through an
underwriting syndicate managed by NAME will be governed by this Underwriting
Agreement, as supplemented by the applicable Terms Agreement.
PSEG has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-_______) [and
pre-effective amendment(s) no(s). __ thereto] for the registration of the
Securities under the Securities Act of 1933, as amended (the "1933 Act"), and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"). Such registration statement[, which also constitutes
post-effective amendment no. 1 to registration statement on Form S-3 (No.
________),] has been declared effective by the Commission and each Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"), and PSEG has filed such post-effective amendments thereto as may be
required prior to the execution of the applicable Terms Agreement and each such
post-effective amendment has been declared effective by the Commission. Such
registration statement (as so amended, if applicable), including the
information, if any, deemed to be a part thereof pursuant to Rule 430A(b) of the
1933 Act Regulations (the "Rule 430A Information") or Rule 434(d) of the 1933
Act Regulations (the "Rule 434 Information")[, together with registration
statement on Form S-3 (No. _______),] is referred to herein as the "Registration
Statement"; and the final prospectus and the final prospectus supplement
relating to the offering of the Underwritten Securities, in the form first
furnished to the Underwriters by PSEG for use in connection with the offering of
the Underwritten Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the execution of the applicable
Terms Agreement; provided, further, that if PSEG files a registration statement
with the Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the
"Rule 462(b) Registration Statement"), then, after such filing, all references
to "Registration Statement" shall also be deemed to include the Rule 462
Registration Statement; and provided, further, that if PSEG elects to rely upon
Rule 434 of the 1933 Act Regulations, then all references to "Prospectus" shall
also be deemed to include the final or preliminary prospectus and the applicable
term sheet or
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abbreviated term sheet (the "Term Sheet"), as the case may be, in the form first
furnished to the Underwriters by PSEG in reliance upon Rule 434 of the 1933 Act
Regulations, and all references in this Underwriting Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the Registration
Statement became effective and any prospectus that omitted, as applicable, the
Rule 430A Information, the Rule 434 Information or other information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations and was used after such effectiveness
and prior to the execution and delivery of the applicable Terms Agreement. For
purposes of this Underwriting Agreement, all references to the Registration
Statement, Prospectus, Term Sheet or preliminary prospectus or to any amendment
or supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, prior to the execution of the applicable Terms Agreement;
and all references in this Underwriting Agreement to amendments or supplements
to the Registration Statement, Prospectus or preliminary prospectus shall be
deemed to mean and include the filing of any document under the 1934 Act which
is incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by PSEG. PSEG represents and warrants
to NAME, as of the date hereof, and to each Underwriter named in the applicable
Terms Agreement, as of the date thereof, as of the Closing Time (as defined
below) and, if applicable, as of each Date of Delivery (as defined below) (in
each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. PSEG meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement (or such Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of PSEG, are contemplated by the Commission, and any request
on the part of the Commission for additional information has been complied
with. In addition, each Indenture has been duly qualified under the 1939
Act.
At the respective times the Registration Statement (including any
Rule 462(b) Registration Statement) and any post-effective amendments
thereto (including the filing of PSEG's most recent Annual Report on Form
10-K with the Commission (the
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"Annual Report on Form 10-K")) became effective and at each Representation
Date, the Registration Statement (including any Rule 462(b) Registration
Statement) and any amendments thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. At the date of the Prospectus, at the
Closing Time and at each Date of Delivery, if any, neither the Prospectus
nor any amendments and supplements thereto included or will include an
untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. If
PSEG elects to rely upon Rule 434 of the 1933 Act Regulations, PSEG will
comply with the requirements of Rule 434. Notwithstanding the foregoing,
the representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to PSEG in writing by any Underwriter through NAME expressly for
use in the Registration Statement or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with the offering of Underwritten Securities will,
at the time of such delivery, be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the 1933 Act and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to PSEG by an Underwriter through NAME
expressly for use therein;
(2) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act Regulations") and,
when read together with the other information in the Prospectus, at the
date of the Prospectus, at the Closing Time and at each Date of Delivery,
if any,
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did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(4) Financial Statements. The financial statements of PSEG included
in the Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements,
schedules and notes of any other entity included therein, present fairly
the financial position of PSEG and its consolidated subsidiaries, or such
other entity, as the case may be, at the dates indicated and the statement
of operations, stockholders' equity and cash flows of PSEG and its
consolidated subsidiaries, or such other entity, as the case may be, for
the periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement and the
Prospectus present fairly in accordance with GAAP the information required
to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration
Statement and the Prospectus.
(5) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the business, properties, earnings or financial
condition of PSEG and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material
Adverse Effect"), (B) there have been no transactions entered into by PSEG
or any of its subsidiaries, other than those arising in the ordinary
course of business, which are material with respect to PSEG and its
subsidiaries considered as one enterprise and (C) except for regular
dividends on PSEG's common stock or preferred stock, in amounts per share
that are consistent with past practice or the applicable charter document
or supplement thereto, respectively, there has been no dividend or
distribution of any kind declared, paid or made by PSEG on any class of
its capital stock.
(6) Good Standing of PSEG. PSEG has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of New Jersey, with due corporate authority to own and operate its
properties and to conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
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the conduct of business, except where the failure to so qualify or be in
good standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each "significant subsidiary" of
PSEG (as such term is defined in Rule 1-02 of Regulation S-X promulgated
under the ▇▇▇▇ ▇▇▇) and Public Service Electric and Gas Company, PSEG
Power LLC and PSEG Energy Holdings Inc. (each, a "Subsidiary" and,
collectively, the "Subsidiaries"), if any, has been duly organized and is
validly existing as a corporation or limited liability company in good
standing under the laws of the jurisdiction of its organization, has power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation/ limited liability company to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure to so qualify or be in good standing
would not result in a Material Adverse Effect. Except as otherwise stated
in the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock of each Subsidiary that is a corporation has
been duly authorized and is validly issued, fully paid and non-assessable
and is owned by PSEG, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of any Subsidiary
was issued in violation of preemptive or other similar rights of any
security holder of such Subsidiary.
(8) Capitalization. If the Prospectus contains a "Capitalization"
section, the authorized, issued and outstanding shares of capital stock of
PSEG is as set forth in the column entitled "Actual" under such section
(except for subsequent issuances thereof, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). Such shares of capital stock have
been duly authorized and validly issued by PSEG and are fully paid and
non-assessable, and none of such shares of capital stock was issued in
violation of preemptive or other similar rights of any security holder of
PSEG.
(9) Authorization of this Underwriting Agreement and Terms
Agreement. This Underwriting Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized, executed
and delivered by PSEG.
(10) Authorization of Underwritten Securities. The Underwritten
Securities being sold pursuant to the applicable Terms Agreement, whether
Senior Debt Securities and/or Subordinated Debt Securities, have been, or
as of the date of such Terms Agreement will have been, duly authorized by
PSEG for issuance and sale pursuant to this Underwriting Agreement and
such Terms Agreement. Such Underwritten Securities, when issued and
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the consideration therefor specified in such
Terms Agreement, will constitute valid and binding obligations of PSEG,
enforceable against PSEG in accordance with their terms, except as the
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enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or composite currency (or a foreign or composite currency judgment
in respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or by
governmental authority to limit, delay or prohibit the making of payments
outside the United States. Such Underwritten Securities will be in the
form contemplated by, and each registered holder thereof is entitled to
the benefits of, the applicable Indenture.
(11) Authorization of the Indentures. Each applicable Indenture has
been, or prior to the issuance of the Debt Securities thereunder will have
been, duly authorized, executed and delivered by PSEG and, upon such
authorization, execution and delivery, will constitute a valid and binding
agreement of PSEG, enforceable against PSEG in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(12) Descriptions of the Underwritten Securities and the Indentures.
The Underwritten Securities being sold pursuant to the applicable Terms
Agreement and each applicable Indenture, as of each Representation Date,
when issued and delivered in accordance with the terms of the related
Underwritten Securities, will conform in all material respects to the
statements relating thereto contained in the Prospectus and will be
substantially in the form filed or incorporated by reference, as the case
may be, as an exhibit to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither PSEG nor any of its
Subsidiaries is in violation of its Amended and Restated Certificate of
Incorporation, other organization document or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which PSEG or any of its Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the assets, properties or operations
of PSEG or any of its Subsidiaries is subject (collectively, "Agreements
and Instruments"), except for such defaults that would not result in a
Material Adverse Effect. The execution, delivery and performance of this
Underwriting Agreement, the applicable Terms Agreement and each applicable
Indenture and any other agreement or instrument entered into or issued or
to be entered into or issued by PSEG in connection with the transactions
contemplated hereby or thereby or in the Registration Statement and the
Prospectus and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus (including the
issuance
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and sale of the Underwritten Securities and the use of the proceeds from
the sale of the Underwritten Securities as described under the caption
"Use of Proceeds") and compliance by PSEG with its obligations hereunder
and thereunder have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of PSEG or any of its subsidiaries pursuant to,
any Agreements and Instruments, nor will such action result in any
violation of the provisions of the charter or by-laws of PSEG or any of
its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
PSEG or any of its subsidiaries or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by PSEG or any of its subsidiaries.
(14) Absence of Labor Dispute. No labor dispute with the employees
of PSEG or any of its Subsidiaries exists or, to the knowledge of PSEG, is
imminent, and PSEG is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case,
may reasonably be expected to result in a Material Adverse Effect.
(15) Absence of Proceedings. Other than as set forth in or
contemplated by the Prospectus, there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
PSEG threatened, against or affecting PSEG or any of its subsidiaries
which is required to be disclosed in the Registration Statement and the
Prospectus (other than as stated therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the consolidated assets,
properties or operations thereof or the consummation of the transactions
contemplated under the Prospectus, this Underwriting Agreement, the
applicable Terms Agreement or any applicable Indenture, or the performance
by PSEG of its obligations hereunder and thereunder. The aggregate of all
pending legal or governmental proceedings to which PSEG or any of its
subsidiaries is a party or of which any of their respective assets,
properties or operations is the subject which are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(16) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
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(17) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by PSEG of this Underwriting Agreement or the
applicable Terms Agreement or for the performance by PSEG of the
transactions contemplated under the Prospectus, this Underwriting
Agreement, such Terms Agreement or any applicable Indenture, except the
registration of the Securities under the 1933 Act, the qualification of
the Indentures under the 1939 Act and such consents, approvals,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the issuance and sale, as the case may
be, of the securities and except such as have been already made, obtained
or rendered, as applicable.
(18) Possession of Licenses and Permits. PSEG and its Subsidiaries
possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them. PSEG and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse Effect. All of
the Governmental Licenses are valid and in full force and effect, except
where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not result in a
Material Adverse Effect. Neither PSEG nor any of its Subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(19) Title to Property. PSEG and its Subsidiaries have good and
marketable title to all real property owned by PSEG and its Subsidiaries
and good title to all other properties owned by them, in each case, free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind, except (A) as otherwise stated
in the Registration Statement and the Prospectus or (B) those which do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by PSEG or any of its Subsidiaries. All of the leases and
subleases material to the business of PSEG and its Subsidiaries considered
as one enterprise, and under which PSEG or any of its Subsidiaries holds
properties described in the Prospectus, are in full force and effect, and
neither PSEG nor any of its Subsidiaries has received any notice of any
material claim of any sort that has been asserted by anyone adverse to the
rights of PSEG or any of its Subsidiaries under any of the leases or
subleases mentioned above, or affecting or questioning the rights of PSEG
or such subsidiary of the continued possession of the leased or subleased
premises under any such lease or sublease.
(20) Commodity Exchange Act. The Underwritten Securities being sold
pursuant to the applicable Terms Agreement will be excluded or exempted
under, or
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beyond the purview of, the Commodity Exchange Act, as amended (the
"Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the
"Commodity Exchange Act Regulations").
(21) Investment Company Act. PSEG is not, and upon the issuance and
sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "1940 Act").
(22) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither PSEG
nor any of its Subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or rule
of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) PSEG and its
subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against PSEG or any of its subsidiaries
and (D) there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or
agency, against or affecting PSEG or any of its subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(b) Officers' Certificates. Any certificate signed by any officer of PSEG
or any of its Subsidiaries and delivered to any Underwriter or to counsel for
the Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by PSEG to each Underwriter as to
the matters covered thereby on the date of such certificate and, unless
subsequently amended or supplemented, at each Representation Date subsequent
thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have
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been made on the basis of the representations, warranties and agreements herein
contained and shall be subject to the terms and conditions herein set forth.
(b) Option Underwritten Securities. Subject to the terms and conditions
herein set forth, PSEG may grant, if so provided in the applicable Terms
Agreement, an option to the Underwriters, severally and not jointly, to purchase
up to the aggregate principal amount of the Option Underwritten Securities set
forth therein at a price per Option Underwritten Security equal to the price per
Initial Underwritten Security. Such option, if granted, will expire 30 days
after the date of such Terms Agreement, and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial
Underwritten Securities upon notice by NAME to PSEG setting forth the aggregate
principal amount of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time and
date of payment and delivery (each, a "Date of Delivery") shall be determined by
NAME, but shall not be later than seven full business days after the exercise of
said option, nor in any event prior to the Closing Time, unless otherwise agreed
upon by NAME and PSEG. If the option is exercised as to all or any portion of
the Option Underwritten Securities, each of the Underwriters, severally and not
jointly, will purchase that proportion of the total aggregate principal amount
of Option Underwritten Securities then being purchased which the aggregate
principal amount of Initial Underwritten Securities each such Underwriter has
severally agreed to purchase as set forth in such Terms Agreement bears to the
total aggregate principal amount of Initial Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of PSEG, ▇▇ ▇▇▇▇
▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall
be agreed upon by NAME and PSEG, at 9:00 A.M. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date of the applicable Terms Agreement (unless postponed
in accordance with the provisions of Section 10 hereof), or such other time not
later than ten business days after such date as shall be agreed upon by NAME and
PSEG (such time and date of payment and delivery being herein called "Closing
Time"). In addition, in the event that the Underwriters have exercised their
option, if any, to purchase any or all of the Option Underwritten Securities,
payment of the purchase price for, and delivery of such Option Underwritten
Securities, shall be made at the above-mentioned offices of PSEG, or at such
other place as shall be agreed upon by NAME and PSEG, on the relevant Date of
Delivery as specified in the notice from NAME to PSEG.
Payment shall be made to PSEG by wire transfer of immediately available
funds to a bank account designated by PSEG, against delivery to NAME for the
respective accounts of the Underwriters of the Underwritten Securities to be
purchased by them. It is understood that each Underwriter has authorized NAME,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Underwritten Securities which it has severally agreed to
purchase. NAME, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Underwritten Securities to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the
11
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities shall be in
such denominations and registered in such names as NAME may request in writing
at least one full business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be. The Underwritten Securities will be made available
for examination and packaging by NAME in The City of New York not later than
9:00 A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of PSEG. PSEG covenants with NAME and with each
Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Compliance with Securities Regulations and Commission Requests. PSEG,
subject to Section 3(b), will comply with the requirements of Rule 430A of the
1933 Act Regulations and/or Rule 434 of the 1933 Act Regulations, if and as
applicable, and will notify the Representative(s) promptly, and confirm the
notice in writing, of (i) the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Underwritten Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. PSEG will promptly effect the filings necessary pursuant to Rule
424 and will take such steps as it deems necessary to ascertain promptly whether
the Prospectus transmitted for filing under Rule 424 was received for filing by
the Commission and, in the event that it was not, it will promptly file the
Prospectus. PSEG will make every reasonable effort to prevent the issuance of
any stop order and, if any stop order is issued, promptly to use its best
efforts to obtain its withdrawal.
(b) Filing of Amendments. PSEG will give NAME notice of its intention to
file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b) of the 1933 Act Regulations), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish NAME
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which NAME or counsel for the Underwriters shall reasonably
disapprove.
(c) Delivery of Registration Statements. PSEG has furnished or will
deliver to NAME and counsel for the Underwriters, in such quantities as NAME may
reasonably request, without charge, signed copies of the Registration Statement
as originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to NAME, without
charge, a conformed copy of
12
the Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. PSEG will deliver to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and PSEG hereby consents to the use of such
copies for purposes permitted by the 1933 Act. PSEG will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus as such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. PSEG will comply with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Underwritten Securities as contemplated in this Underwriting Agreement and the
applicable Terms Agreement and in the Registration Statement and the Prospectus.
If at any time when the Prospectus is required by the 1933 Act or the 1934 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or for PSEG, to amend the Registration
Statement in order that the Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, PSEG
will promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and PSEG will furnish to the Underwriters, without charge,
such number of copies of such amendment or supplement as the Underwriters may
reasonably request.
(f) Blue Sky Qualifications. PSEG will use its best efforts, in
cooperation with the Underwriters, to qualify the Underwritten Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as NAME may designate and to maintain such
qualifications in effect for a period of not less than one year from the date of
the applicable Terms Agreement; provided, however, that PSEG shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Underwritten Securities have been so qualified, PSEG
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such
13
qualification in effect for a period of not less than one year from the date of
such Terms Agreement.
(g) Earnings Statement. PSEG will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) Use of Proceeds. PSEG will use the net proceeds received by it from
the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Listing. PSEG will use its best efforts to effect the listing of the
Underwritten Securities, prior to the Closing Time, on any national securities
exchange or quotation system if and as specified in the applicable Terms
Agreement.
(j) Restriction on Sale of Securities. Between the date of the applicable
Terms Agreement and the Closing Time or such other date specified in such Terms
Agreement, PSEG will not, without the prior written consent of NAME, directly or
indirectly, issue, sell, offer or contract to sell, grant any option for the
sale of, or otherwise dispose of, the securities specified in such Terms
Agreement.
(k) Reporting Requirements. PSEG, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. PSEG will pay all expenses
incident to the performance of its obligations under this Underwriting Agreement
or the applicable Terms Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Underwriting
Agreement, any Terms Agreement, any Agreement among Underwriters, the Indentures
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Underwritten Securities, (iii) the
preparation, issuance and delivery of the Underwritten Securities, to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Underwritten Securities to the
Underwriters, (iv) the fees and disbursements of PSEG's counsel, accountants and
other advisors or agents (including transfer agents and registrars), as well as
the fees and disbursements of the Trustees and their counsel, (v) the
qualification of the Underwritten Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation, printing and
delivery of the Blue Sky Survey, and any amendment thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Term Sheet, and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Underwritten Securities, (viii) the fees and expenses incurred
with respect to the listing of the Underwritten Securities,
14
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by the
National Association of Securities Dealers, Inc. (the "NASD") of the terms of
the sale of the Underwritten Securities, (x) all other costs and expenses
incident to the performance of obligations hereunder which are not otherwise
specifically provided for in this Section and (xi) the fees and expenses of any
Underwriter acting in the capacity of a "qualified independent underwriter" (as
defined in Section 2(l) of Schedule E of the bylaws of the NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by NAME in accordance with the provisions of Section 5 hereof, PSEG
shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy of the representations
and warranties of PSEG contained in Section 1 hereof or in certificates of any
officer of PSEG or any of its subsidiaries delivered pursuant to the provisions
hereof, to the performance by PSEG of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become
effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act and no proceedings for that purpose shall have
been instituted or be pending or threatened by the Commission, and
any request on the part of the Commission for additional information
shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information
relating to the description of the Underwritten Securities, the
specific method of distribution and similar matters shall have been
filed with the Commission in accordance with Rule 424(b)(1), (2),
(3), (4) or (5), as applicable (or any required post-effective
amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule
430A), or, if PSEG has elected to rely upon Rule 434 of the 1933 Act
Regulations, a Term Sheet including the Rule 434 Information shall
have been filed with the Commission in accordance with Rule
424(b)(7).
(b) Opinion of Counsel for Company. At Closing Time, NAME shall have
received the favorable opinion, dated as of Closing Time, of either
▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire, Associate General Counsel or R. ▇▇▇▇▇
▇▇▇▇▇▇▇, Esquire, Vice President and General Counsel of PSEG, in
form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of
the other Underwriters, to the effect set forth in Exhibit B hereto
and to such further effect as counsel to the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At Closing Time, NAME shall
have received the favorable opinion, dated as of Closing Time, of
▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for
15
the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, with respect to the
matters set forth in (6) to (9), (10) (solely as to the information
in the Prospectus under "Description of Debt Securities", or any
caption purporting to describe any such Securities), (16), (17),
(20) and the penultimate paragraph of Exhibit B hereto. In giving
such opinion, such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to NAME. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of
PSEG and its subsidiaries and certificates of public officials.
(d) Officer's Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of PSEG and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and NAME
shall have received a certificate of the Chairman, the President or
any Vice President of PSEG, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) are true and correct
with the same force and effect as though expressly made at and as of
the Closing Time, (iii) PSEG has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at
or prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted, are pending or,
to the best of such officer's knowledge, are threatened by the
Commission.
(e) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, NAME shall have received from Deloitte &
Touche LLP a letter dated such date, in form and substance
satisfactory to NAME, together with signed or reproduced copies of
such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in
the Registration Statement and the Prospectus and as of a specified
date not more than three business days prior to the date of such
letter.
(f) Bring-down Comfort Letter. At Closing Time, NAME shall have received
from Deloitte & Touche LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section 5, except that
the specified date referred to shall be a date not more than three
business days prior to the Closing Time.
(g) Ratings. At Closing Time and at any relevant Date of Delivery, the
Underwritten Securities shall have the ratings accorded by any
"nationally recognized statistical rating organization", as defined
by the Commission for purposes of Rule 436(g)(2) of the
16
1933 Act Regulations, as specified in the applicable Terms
Agreement, and PSEG shall have delivered to NAME a letter, dated as
of such date, from each such rating organization, or other evidence
satisfactory to NAME, confirming that the Underwritten Securities
have such ratings. Since the time of execution of such Terms
Agreement, there shall not have occurred a downgrading in, or
withdrawal of, the rating assigned to the Underwritten Securities or
any of PSEG's other securities by any such rating organization, and
no such rating organization shall have publicly announced that it
has under surveillance or review its rating of the Underwritten
Securities or any of PSEG's other securities.
(h) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official
notice of issuance, if and as specified in the applicable Terms
Agreement.
(i) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the
NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and
arrangements.
(j) Lock-up Agreements. On the date of the applicable Terms Agreement,
NAME shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as
being required to be delivered by the persons listed therein.
(k) Over-Allotment Option. In the event that the Underwriters are
granted an over-allotment option by PSEG in the applicable Terms
Agreement and the Underwriters exercise their option to purchase all
or any portion of the Option Underwritten Securities, the
representations and warranties of PSEG contained herein and the
statements in any certificates furnished by PSEG or any of its
subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, NAME shall have
received:
(1) A certificate, dated such Date of Delivery, of the
Chairman, the President or any Vice President of PSEG, confirming
that the certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(2) The favorable opinion of either ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire,
Associate General Counsel or R. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esquire, Vice
President and General Counsel for PSEG, each in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Underwritten Securities and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(3) The favorable opinion of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
17
(4) A letter from Deloitte & Touche LLP, in form and substance
satisfactory to NAME and dated such Date of Delivery, substantially
in the same form and substance as the letter furnished to NAME
pursuant to Section 5(f) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than three business days prior to such Date of Delivery.
(5) Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the
rating assigned to the Underwritten Securities or any of PSEG's
other securities by any such rating organization, and no such rating
organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or
any of PSEG's other securities.
(l) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Underwritten
Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by PSEG in connection with the issuance and sale
of the Underwritten Securities as herein contemplated shall be
satisfactory in form and substance to NAME and counsel for the
Underwriters.
(m) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, the applicable Terms Agreement (or, with respect to the
Underwriters' exercise of any applicable over-allotment option for
the purchase of Option Underwritten Securities on a Date of Delivery
after the Closing Time, the obligations of the Underwriters to
purchase the Option Underwritten Securities on such Date of
Delivery) may be terminated by NAME by notice to PSEG at any time at
or prior to the Closing Time (or such Date of Delivery, as
applicable), and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except
that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. PSEG agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) or
18
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, unless such untrue statement
or omission or such alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to PSEG
by an Underwriter through NAME expressly for use in the Registration
Statement, such preliminary prospectus or the Prospectus, or any amendment
or supplement thereto;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any alleged
untrue statement or omission, if such settlement is effected with the
written consent of PSEG; and
(iii) against any and all expense whatsoever, as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply (i) to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to PSEG by
any Underwriter through NAME expressly for use in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or (ii) to
any Underwriter in connection with any preliminary prospectus to the extent that
any such loss, claim, damage or liability of such Underwriter results solely
from the fact that such Underwriter sold Underwritten Securities to a person to
whom it is established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) in any case where such delivery is required by the
1933 Act, if PSEG has previously furnished to NAME on behalf of the
Underwriters, including such Underwriter, the copies thereof theretofore
requested by NAME, and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in a
preliminary prospectus that was corrected in the Prospectus.
(b) In no case shall PSEG be liable under the indemnity agreement set
forth in Section 6(a) hereof with respect to any claim made against any
Underwriter or any such controlling person unless such party shall be notified
in writing of the nature of the claim promptly after the assertion thereof, but
failure to so notify such party shall not relieve it from any liability which it
may have otherwise than on account of said indemnity agreement. PSEG shall be
entitled to participate at its own expense in the defense, or, if it so elects,
within a reasonable time after receipt of such notice, to assume the defense of
any suit brought to enforce any such claim, but if it so elects to assume the
defense shall be conducted by counsel chosen by it and approved by the
Underwriter or Underwriters or controlling person or persons, defendant or
defendants in any suit
19
so brought, which approval shall not be unreasonably withheld. In the event that
PSEG elects to assume the defense of any such suit and retains such counsel, the
Underwriter or Underwriters or controlling person or persons, defendant or
defendants in the suit, shall bear the fees and expenses of any additional
counsel thereafter retained by them. In the event that the parties to any such
action (including impleaded parties) include PSEG and one or more Underwriters
and any such Underwriter shall have been advised by counsel chosen by it and
satisfactory to PSEG, as the case may be, that there may be one or more legal
defenses available to it which are different from or additional to those
available to PSEG, PSEG shall not have the right to assume the defense of such
action on behalf of such Underwriter and PSEG will reimburse such Underwriter
and any person controlling such Underwriter as aforesaid for the reasonable fees
and expenses of any counsel retained by them, it being understood that PSEG
shall not, in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys for all such Underwriters and controlling persons,
which firm shall be designated by the NAME in writing. PSEG agrees to notify the
NAME promptly after the assertion of any claim against it, any of its directors,
any of its officers who signed the Registration Statement, or any person who
controls it within the meaning of Section 15 of the 1933 Act, in connection with
the issuance and sale, as the case may be, of the Securities.
(c) Indemnification of PSEG, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless PSEG, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls PSEG within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information
deemed to be a part thereof, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to PSEG by such Underwriter
through NAME expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). In case any action shall be brought against PSEG or any
person so indemnified based on the Registration Statement, such preliminary
prospectus or the Prospectus, or any amendment or supplement thereto and in
respect of which indemnity may be sought against any Underwriter, such
Underwriter shall have the rights and duties given to PSEG, and PSEG and each
person so indemnified shall have the rights and duties given to the Underwriters
by the provisions of Section 6(a) and (b) hereof.
(d) The indemnity agreements contained in this Section 6 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of PSEG, or any Underwriter or any controlling person, and shall
survive the delivery of the Securities to the Underwriters.
(e) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying
20
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, PSEG and the Underwriters
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreements incurred by
PSEG and one or more of the Underwriters, in such proportions that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount appearing in the Terms Agreement or on the cover page
of the Prospectus relating to the Securities bears to the initial public
offering price appearing thereon and PSEG, is responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of PSEG, each officer of
PSEG who signed the Registration Statement, and each person, if any, who
controls PSEG within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as PSEG.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Underwriting
Agreement or the applicable Terms Agreement or in certificates of officers of
PSEG or any of its subsidiaries submitted pursuant hereto or thereto shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of PSEG, and shall survive delivery of and payment for the Underwritten
Securities.
If this Agreement shall be terminated pursuant to Section 9 hereof, PSEG
shall not be under any liability to any Underwriter except as provided in
Sections 4, 6 and 7 hereof; but if, for any other reason the transactions
contemplated herein are not consummated, PSEG will reimburse the Underwriter for
all out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Securities, but PSEG shall then be under no further
liability to the Underwriters in respect of the Securities not so delivered
except as provided in Sections 4, 6 and 7 hereof.
21
Except as provided above, PSEG shall not be liable to the Underwriters for
damages on account of any other consequential damages or loss of anticipated
profits.
In all dealings hereunder, the representatives shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by the representatives jointly or by NAME on behalf of the
representatives.
SECTION 9. Termination.
(a) Underwriting Agreement. This Underwriting Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by PSEG
or by NAME upon the giving of 30 days' prior written notice of such termination
to the other party hereto.
(b) Terms Agreement. NAME may terminate the applicable Terms Agreement, by
notice to PSEG, at any time at or prior to the Closing Time or any relevant Date
of Delivery, if (a) (i) a general banking moratorium shall have been declared by
either Federal or New York authorities, or (ii) there shall have occurred any
new outbreak or unforeseen escalation of hostilities or other national or
international calamity or crisis, or (iii) there shall have occurred a
suspension or material limitation in (x) trading in securities generally on the
New York Stock Exchange or (y) trading in any of PSEG's securities on the New
York Stock Exchange, and the effect of the occurrence of any event referred to
in clause (i), (ii) or (iii) above is, in the reasonable judgment of the NAME,
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering of the Securities or the delivery of the Securities on
the terms and in the manner contemplated in the Prospectus, or (b) the rating
accorded the Securities or any of PSEG's debt securities or preferred stock by
any Rating Agency shall have been lowered since the time this Underwriting
Agreement was executed or if any Rating Agency shall have publicly announced
since the time this Underwriting Agreement was executed that it has placed its
rating of the Securities or any of PSEG's debt securities or preferred stock
under surveillance or review, with possible negative implications.
(c) Liabilities. If this Underwriting Agreement or the applicable Terms
Agreement is terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then NAME shall have the right, within 36 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, NAME shall not have completed such
arrangements within such 36-hour period, then:
22
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Underwritten
Securities to be purchased on such date pursuant to such Terms
Agreement, the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in
the proportions that their respective underwriting obligations under
such Terms Agreement bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of Underwritten Securities to
be purchased on such date pursuant to such Terms Agreement, such
Terms Agreement (or, with respect to the Underwriters' exercise of
any applicable over-allotment option for the purchase of Option
Underwritten Securities on a Date of Delivery after the Closing
Time, the obligations of the Underwriters to purchase, and PSEG to
sell, such Option Underwritten Securities on such Date of Delivery)
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and PSEG with respect to the related Option Underwritten
Securities, as the case may be, either NAME or PSEG shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or the Prospectus or in any other documents or
arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to NAME at address, attention of name; and
notices to PSEG shall be directed to it at ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇ Esq., Associate General Counsel.
SECTION 12. Parties. This Underwriting Agreement and the applicable Terms
Agreement shall each inure to the benefit of and be binding upon PSEG, NAME and,
upon execution of such Terms Agreement, any other Underwriters and their
respective successors. Nothing expressed or mentioned in this Underwriting
Agreement or such Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and PSEG and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Underwriting Agreement or such Terms Agreement or any provision herein or
therein contained. This Underwriting Agreement and such Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of
23
Underwritten Securities from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT AND ANY
APPLICABLE TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Very truly yours,
PUBLIC SERVICE ENTERPRISE
GROUP INCORPORATED
By: ___________________________
Confirmed and accepted as of the
date first above written:
NAME
By: __________________________
24
Exhibit A
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
(a New Jersey corporation)
Debt Securities
TERMS AGREEMENT
[Date]
To: Public Service Enterprise Group Incorporated
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
We understand that Public Service Enterprise Group Incorporated, a New
Jersey corporation ("PSEG"), proposes to issue and sell [$___________] aggregate
principal amount of its [senior] [subordinated] debt securities (the "Debt
Securities") [senior] [subordinated] debt securities ([such securities also
being hereinafter referred to as] the "[Initial] Underwritten Securities").
Subject to the terms and conditions set forth or incorporated by reference
herein, we [the underwriters named below (the "Underwriters")] offer to
purchase, severally and not jointly, the principal amount of Underwritten
Securities opposite their names set forth below at the purchase price set forth
below [, and a proportionate share of Option Underwritten Securities set forth
below, to the extent any are purchased].
A-1
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
-----------
Total [$]
===========
The Underwritten Securities shall have the following terms:
Title:
Rank:
Ratings:
Aggregate principal amount:
Aggregate principal amount of Option Underwritten Securities:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per security:
% of the principal amount, plus accrued interest [amortized original
issue discount], if any, from _________________.
Purchase price per security: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from ________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED -- Debt Securities --
Underwriting Agreement" are hereby incorporated by reference in their entirety
herein and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
Please accept this offer no later than _____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
A-2
Very truly yours,
[NAME]
By _________________________
Authorized Signatory
Accepted:
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
By _________________________
Name:
Title:
A-3
Exhibit B
FORM OF OPINION OF PSEG'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) PSEG has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New Jersey.
(2) PSEG has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement.
(3) PSEG is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect.
(4) Each Subsidiary has been duly organized and is validly existing as a
corporation or limited liability company in good standing under the laws of the
jurisdiction of its organization, has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation/ limited liability
company to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse Effect.
Except as otherwise stated in the Registration Statement and the Prospectus, all
of the issued and outstanding capital stock of each Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and, to the best
of my knowledge, is owned by PSEG, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity. None of the outstanding shares of capital stock of any Subsidiary was
issued in violation of preemptive or other similar rights of any security holder
of such Subsidiary.
(5) The authorized, issued and outstanding shares of capital stock of PSEG
is as set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the Prospectus
or pursuant to the exercise of convertible securities or options referred to in
the Prospectus). Such shares of capital stock have been duly authorized and
validly issued by PSEG and are fully paid and non-assessable, and none of such
shares of capital stock was issued in violation of preemptive or other similar
rights of any security holder of PSEG.
(6) The Underwriting Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by PSEG.
Annex I-1
(7) The Underwritten Securities have been duly authorized by PSEG for
issuance and sale pursuant to the Underwriting Agreement and the applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated in
the manner provided for in the applicable Indenture and delivered against
payment of the consideration therefor specified in such Terms Agreement, will
constitute valid and binding obligations of PSEG, enforceable against PSEG in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in
equity or at law), and except further as enforcement thereof may be limited by
requirements that a claim with respect to any Debt Securities payable in a
foreign or corporate currency (or a foreign or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or by governmental
authority to limit, delay or prohibit the making of payments outside the United
States. The Underwritten Securities are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the applicable
Indenture.
(8) The applicable Indenture has been duly authorized, executed and
delivered by PSEG and (assuming due authorization, execution and delivery
thereof by the applicable Trustee) constitutes a valid and binding agreement of
PSEG, enforceable against PSEG in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(9) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and the Indenture conform, when issued and delivered in
accordance with the terms of the related Underwritten Securities, will conform,
in all material respects to the statements relating thereto contained in the
Prospectus and are in substantially the form filed or incorporated by reference,
as the case may be, as an exhibit to the Registration Statement.
(10) The information in the Prospectus under "Description of Debt
Securities" or any caption purporting to describe any such Securities, in the
Annual Report on Form 10-K under "PSE&G - Rate Matters" and "-- Environmental
Controls" in Item 1 - Business and under Item 3 - Legal Proceedings, to the
extent that it constitutes matters of law, summaries of legal matters or PSEG's
charter, bylaws or legal proceedings, or legal conclusions, has been reviewed by
me and is correct in all material respects.
(11) To the best of my knowledge, neither PSEG nor any of its Subsidiaries
is in violation of its charter or by-laws and no default by PSEG or any of its
Subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
Annex I-2
(12) The execution, delivery and performance of the Underwriting
Agreement, the applicable Terms Agreement and the applicable Indenture and any
other agreement or instrument entered into or issued or to be entered into or
issued by PSEG in connection with the transactions contemplated in the
Registration Statement and the Prospectus and the consummation of the
transactions contemplated in the Underwriting Agreement and such Terms Agreement
and in the Registration Statement and the Prospectus (including the issuance and
sale of the Underwritten Securities and the use of the proceeds from the sale of
the Underwritten Securities as described under the caption "Use of Proceeds")
and compliance by PSEG with its obligations thereunder do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of PSEG or any of its subsidiaries pursuant to,
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument, known to me, to which PSEG or
any of its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the assets, properties or operations of PSEG or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of PSEG or any of its subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to me, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over PSEG or any of its subsidiaries or any of
their assets, properties or operations.
(13) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which PSEG or any of its
subsidiaries thereof is a party or to which the assets, properties or operations
of PSEG or any of its subsidiaries thereof is subject, before or by any court or
governmental agency or body, domestic or foreign, which might reasonably be
expected to result in a Material Adverse Effect or which might reasonably be
expected to materially and adversely affect the assets, properties or operations
thereof or the consummation of the transactions contemplated under the
Underwriting Agreement, the applicable Terms Agreement or the Indenture or the
performance by PSEG of its obligations thereunder.
(14) All descriptions in the Prospectus of contracts and other documents
to which PSEG or its subsidiaries are a party are accurate in all material
respects. To the best of my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Prospectus or to be filed as
exhibits to the Registration Statement other than those described or referred to
therein or filed or incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all material respects.
(15) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required.
(16) The Registration Statement (including any Rule 462(b) Registration
Statement) has been declared effective under the 1933 Act. Any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b). To the best of my knowledge, no stop
order suspending the effectiveness of the Registration
Annex I-3
Statement (or such Rule 462(b) Registration Statement) has been issued under the
1933 Act and no proceedings for that purpose have been initiated or are pending
or threatened by the Commission.
(17) The Registration Statement (including any Rule 462(b) Registration
Statement) and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement
(including any Rule 462(b) Registration Statement) and Prospectus, excluding the
documents incorporated by reference therein, as of their respective effective or
issue dates (other than the financial statements and supporting schedules
included therein or omitted therefrom and each Trustee's Statement of
Eligibility on Form T-1 (the "Form T-1s"), as to which I express no opinion)
complied as to form in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations.
(18) The documents incorporated by reference in the Prospectus (other than
the financial statements and supporting schedules therein or omitted therefrom,
as to which I express no opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as applicable, and the
rules and regulations of the Commission thereunder.
(19) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, is necessary or required for the due authorization,
execution or delivery by PSEG of the Underwriting Agreement or the applicable
Terms Agreement or for the performance by PSEG of the transactions contemplated
under the Prospectus, the Underwriting Agreement, such Terms Agreement or the
Indenture, other than under the 1933 Act, the 1933 Act Regulations, the 1939 Act
and the 1939 Act Regulations, which have already been made, obtained or
rendered, as applicable.
(20) The applicable Indenture has been duly qualified under the 1939 Act.
(21) The Underwritten Securities, upon issuance, will be excluded or
exempted under, or beyond the purview of, the Commodity Exchange Act, as amended
(the "Commodity Exchange Act"), and the rules and regulations of the Commodity
Futures Trading Commission under the Commodity Exchange Act (the "Commodity
Exchange Act Regulations").
(22) PSEG is not, and upon the issuance and sale of the Underwritten
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
Nothing has come to my attention that would lead me to believe that the
Registration Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (except for financial statements and supporting
schedules and other financial data included therein or omitted therefrom and for
the Form T-1s, as to which I make no statement), at the time the Registration
Statement (including any Rule 462(b) Registration Statement) or any
post-effective amendment thereto (including the filing of PSEG's Annual Report
on Form 10-K with
Annex I-4
the Commission) became effective or at the date of the applicable Terms
Agreement, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and supporting schedules and
other financial data included therein or omitted therefrom, as to which I make
no statement), at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the Closing Time, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of PSEG and public officials. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
Annex I-5