<PAGE>
As filed with the Securities and Exchange Commission on May 5, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C> <C>
Sempra Energy California 33-0732627
Sempra Energy Holdings California 33-0783483
Sempra Energy Capital Trust I Delaware 52-6988596
Sempra Energy Capital Trust II Delaware 52-6988598
Sempra Energy Capital Trust III Delaware 52-6988599
(Exact name of registrant (State or other jurisdiction of (I.R.S. Employer Identification)
as specified in its charter) incorporation or organization)
</TABLE>
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101 Ash Street
San Diego, California 92101
(619) 696-2000
(Name, address, including zip code, and telephone number,
including area code, of each registrant's principal executive offices)
--------------
Copies to:
John R. Light, Esq.
Executive Vice President and General Counsel
101 Ash Street
San Diego, California 92101
(619) 696-2034
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the registration statement becomes effective, as determined by
market and other conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
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If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
--------------
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
--------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
--------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
maximum
aggregate Amount of
Title of each class of securities to be Amount to be offering Registration
registered(1) registered(1)(2)(3) price(3)(4) Fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Debt Securities, Common Stock, without par
value, and Preferred Stock, without par value,
of Sempra Energy..............................
Class A Junior Participating Preferred Stock
Purchase Rights, without par value, of Sempra
Energy(5).....................................
Debt Securities of Sempra Energy Holdings(6)...
Guarantees of Debt Securities of Sempra Energy
Holdings by Sempra Energy.....................
Preferred Securities of Sempra Energy Capital
Trust I, Sempra Energy Capital Trust II and
Sempra Energy Capital Trust III(7)............
Guarantees of Preferred Securities of the Trusts
by Sempra Energy(7)....................
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Total.......................................... $1,000,000,000 $1,000,000,000 $295,000
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</TABLE>
(1) An indeterminate principal amount or number of debt securities, common
stock and/or preferred stock and guarantees of Sempra Energy, an
indeterminate principal amount of debt securities of Sempra Energy
Holdings and an indeterminate number of preferred securities of the Trusts
as may from time to time be issued at indeterminate prices, with an
aggregate offering price not to exceed $1,000,000,000. Debt securities may
be issued and sold to the Trusts, in which event the debt securities may
later be distributed to the holders of preferred securities.
(2) In United States dollars or the equivalent thereof in any other currency,
composite currency or currency unit as shall result in an aggregate
initial offering price for all securities of $1,000,000,000.
(3) This amount represents the principal amount of any debt securities issued
at their principal amount, the issue price of any debt securities issued
at an original issue discount, the issue price of any preferred stock and
preferred securities and the amount computed pursuant to Rule 457(c) for
any common stock.
(4) Estimated solely for the purpose of calculating the registration fee,
which is calculated in accordance with Rule 457(o) of the rules and
regulations under the Securities Act of 1933. Rule 457(o) permits the
registration fee to be calculated on the basis of the maximum offering
price of all of the securities listed and, therefore, the table does not
specify by each class information as to the amount to be registered, the
proposed maximum offering price per unit or the proposed maximum aggregate
offering price.
(5) The Rights are initially carried and traded with the common stock. The
value attributable to the Rights, if any, is reflected in the value of the
common stock.
(6) Also includes an indeterminate number of securities that may be issued
upon conversion or exchange of any securities registered hereunder that
provide for conversion or exchange.
(7) Includes the rights of holders of the preferred securities under the
guarantees of preferred securities and back-up undertakings, consisting of
obligations by Sempra Energy, as set forth in the declaration of trust,
the applicable indenture and any supplemental indenture thereto, in each
case as further described in the Registration Statement. No separate
consideration will be received for any guarantees or any back-up
undertakings.
----------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated May 5, 1999
PROSPECTUS
$1,000,000,000
SEMPRA ENERGY
Debt Securities, Common Stock, Preferred Stock and Guarantees
SEMPRA ENERGY HOLDINGS
Debt Securities Guaranteed by Sempra Energy
SEMPRA ENERGY CAPITAL TRUST I
SEMPRA ENERGY CAPITAL TRUST II
SEMPRA ENERGY CAPITAL TRUST III
Preferred Securities Guaranteed by Sempra Energy
-----------
We may offer and sell the securities from time to time in one or more
offerings. This prospectus provides you with a general description of the
securities we may offer.
Each time we sell securities we will provide a supplement to this prospectus
that contains specific information about the offering and the terms of the
securities. The supplement may also add, update or change information contained
in this prospectus. You should carefully read this prospectus and any
supplement before you invest in any of our securities.
Sempra Energy
Sempra Energy may offer and sell the following securities:
. debt securities
. common stock
. preferred stock
. guarantees of debt securities and preferred securities
Sempra Energy Holdings
Sempra Energy Holdings may offer and sell debt securities, guaranteed by
Sempra Energy.
The Sempra Energy Trusts
Sempra Energy Capital Trust I, Sempra Energy Capital Trust II and Sempra
Energy Capital Trust III may offer and sell preferred securities, guaranteed by
Sempra Energy.
-----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is May 5, 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ABOUT THIS PROSPECTUS.................................................... 1
FORWARD-LOOKING STATEMENTS............................................... 2
WHERE YOU CAN FIND MORE INFORMATION...................................... 2
SEMPRA ENERGY............................................................ 4
SEMPRA ENERGY HOLDINGS................................................... 4
THE TRUSTS............................................................... 5
USE OF PROCEEDS.......................................................... 6
RATIO OF SEMPRA ENERGY EARNINGS TO FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS......................................................... 6
DESCRIPTION OF SECURITIES................................................ 7
DESCRIPTION OF DEBT SECURITIES........................................... 7
DESCRIPTION OF SEMPRA ENERGY'S COMMON STOCK AND PREFERRED STOCK.......... 19
DESCRIPTION OF PREFERRED SECURITIES...................................... 23
DESCRIPTION OF PREFERRED SECURITIES GUARANTEES .......................... 30
EXPERTS.................................................................. 33
VALIDITY OF THE SECURITIES AND THE GUARANTEES............................ 33
PLAN OF DISTRIBUTION..................................................... 33
</TABLE>
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement that we filed
with the United States Securities and Exchange Commission, or the "SEC." By
using a shelf registration statement, we may sell up to $1,000,000,000 offering
price of any combination of the securities described in this prospectus from
time to time and in one or more offerings. This prospectus only provides you
with a general description of the securities that we may offer. Each time we
sell securities, we will provide a supplement to this prospectus that contains
specific information about the terms of the securities. The supplement may also
add, update or change information contained in this prospectus. Before
purchasing any securities, you should carefully read both this prospectus and
any supplement, together with the additional information described under the
heading "Where You Can Find More Information."
This prospectus does not contain separate financial statements for Sempra
Energy Holdings or the trusts. Sempra Energy files consolidated financial
information with the SEC that includes Sempra Energy Holdings and each of the
trusts. The trusts do not have any independent function other than to issue
securities and to purchase subordinated notes from Sempra Energy. We do not
believe that additional financial information regarding Sempra Energy Holdings
or the Trusts would be useful to you.
You should rely only on the information contained or incorporated by
reference in this prospectus and in any supplement. We have not authorized any
other person to provide you with different information. If anyone provides you
with different or inconsistent information, you should not rely on it. We will
not make an offer to sell these securities in any jurisdiction where the offer
or sale is not permitted. You should assume that the information appearing in
this prospectus and the supplement to this prospectus is accurate as of the
dates on their covers. Our business, financial condition, results of operations
and prospects may have changed since that date.
1
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the additional
information described under the heading "Where You Can Find More Information"
may contain forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. These statements are subject to risks
and uncertainties and are based on the beliefs and assumptions of our
management, based on information currently available to our management. When we
use words such as "believes," "expects," "anticipates," "intends," "plans,"
"estimates," "should" or similar expressions, we are making forward-looking
statements. Forward-looking statements include the information concerning
possible or assumed future results of operations set forth under "Business" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" in our Annual Report on Form 10-K incorporated by reference into
this prospectus.
Forward-looking statements are not guarantees of performance. They involve
risks, uncertainties and assumptions. Our future results and shareholder value
may differ materially from those expressed in these forward-looking statements.
Many of the factors that will determine these results and value are beyond our
ability to control or predict. These statements are necessarily based upon
various assumptions involving judgments with respect to the future including,
among others, our ability to achieve synergies and revenue growth, national,
international, regional and local economic, competitive and regulatory
conditions and developments, technological developments, capital market
conditions, inflation rates, interest rates, energy markets, weather
conditions, business and regulatory or legal decisions, the pace of
deregulation of retail natural gas and electricity, the timing and extent of
changes in commodity prices for oil, natural gas and electricity, and some
agricultural products, the timing and success of business development efforts,
and other uncertainties, all of which are difficult to predict and many of
which are beyond our control. You are cautioned not to put undue reliance on
any forward-looking statements. For those statements, we claim the protection
of the safe harbor for forward-looking statements contained in the Private
Securities Litigation Reform Act of 1995.
You should also consider any other factors contained in this prospectus or in
any accompanying supplement, including the information incorporated by
reference into this prospectus or into any accompanying supplement.
WHERE YOU CAN FIND MORE INFORMATION
Available Information
Sempra Energy files reports, proxy statements and other information with the
SEC. Information filed with the SEC by Sempra Energy can be inspected and
copied at the Public Reference Room maintained by the SEC and at the Regional
Offices of the SEC as follows:
<TABLE>
<S> <C> <C>
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2551
</TABLE>
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. Further
2
<PAGE>
information on the operation of the SEC's Public Reference Room in Washington,
D.C. can be obtained by calling the SEC at 1-800-SEC-0330.
The SEC also maintains a web site that contains reports, proxy statements and
other information about issuers, such as Sempra Energy, who file electronically
with the SEC. The address of that site is http://www.sec.gov.
Sempra Energy's common stock is listed on the New York Stock Exchange (NYSE:
SRE), and reports, proxy statements and other information concerning Sempra
Energy can also be inspected at the offices of the New York Stock Exchange at
20 Broad Street, New York, New York 10005. In addition, reports, proxy
statements and other information concerning Sempra Energy can be inspected at
its offices at 101 Ash Street, San Diego, California 92101.
This prospectus is part of a registration statement that we filed with the
SEC. The full registration statement may be obtained from the SEC or Sempra
Energy, as indicated below. Forms of the indentures, the declarations of trust
and other documents establishing the terms of the offered securities and the
guarantees are filed as exhibits to the registration statement. Statements in
this prospectus about these documents are summaries. You should refer to the
actual documents for a more complete description of the relevant matters.
Incorporation by Reference
The rules of the SEC allow us to "incorporate by reference" information into
this prospectus, which means that we can disclose important information to you
by referring you to another document filed separately with the SEC. The
information incorporated by reference is deemed to be part of this prospectus,
and later information that we file with the SEC will automatically update and
supersede that information. The prospectus incorporates by reference the
documents set forth below that have been previously filed with the SEC. These
documents contain important information about Sempra Energy.
<TABLE>
<CAPTION>
Sec Filings (File No. 1-14201) Period
------------------------------ ------
<C> <S>
Annual Report on Form 10-K.......... Year ended December 31, 1998
Current Reports on Form 8-K......... Filed February 23, 1999, April 2, 1999,
April 14, 1999 and May 5, 1999
Registration Statement on Form 8-A.. Filed June 5, 1998
</TABLE>
We are also incorporating by reference all additional documents that we file
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, between the date of this prospectus and the
termination of the offering of securities described in this prospectus.
Sempra Energy will provide without charge to each person to whom a copy of
this prospectus has been delivered a copy of any and all of these filings. You
may request a copy of these filings by writing or telephoning us at:
Sempra Energy
101 Ash Street
San Diego, California 92101
Attention: Corporate Secretary
Telephone: (619) 696-2034
3
<PAGE>
SEMPRA ENERGY
Sempra Energy, based in San Diego, is a Fortune 500 energy services company.
Through two regulated utility subsidiaries, Southern California Gas Company
and San Diego Gas & Electric Company, Sempra Energy serves over 21 million
consumers, the largest customer base of any gas, electric or combination gas
and electric utility in the United States. Natural gas service is provided
throughout Southern California and portions of Central California through over
5.5 million active meters. Electric service is provided throughout San Diego
County and portions of Orange County, both in Southern California, through
over 1.2 million active meters. Through other subsidiaries, Sempra Energy also
provides other energy-related products and services.
The information above concerning Sempra Energy and its subsidiaries is only
a summary and does not purport to be comprehensive. For additional information
concerning Sempra Energy and its subsidiaries, you should refer to the
information described in "Where You Can Find More Information."
Sempra Energy's offices are located at 101 Ash Street, San Diego, California
92101 and the telephone number is (619) 696-2000.
SEMPRA ENERGY HOLDINGS
Sempra Energy Holdings is a wholly-owned subsidiary of Sempra Energy. It is
a holding company for some of the other subsidiaries of Sempra Energy that are
not subject to California utility regulation. Its principal direct and
indirect subsidiaries currently are:
. Sempra Energy Solutions provides energy-related products and services to
commercial, industrial, governmental, institutional and consumer markets.
Its principal subsidiaries are Sempra Energy Trading and CES/Way.
. Sempra Energy Trading, a wholesale trader of physical and financial
energy products, including natural gas, power, crude oil and associated
commodities. Sempra Energy Trading serves a broad range of customers,
including electric and gas utilities, industrial and large commercial end
users, and major energy marketers. It specializes in high-volume
transactions and provides its customers with customized energy delivery
and pricing programs.
. CES/Way provides energy-efficiency engineering services for government
and institutional customers.
. Sempra Energy Resources acquires and develops power plants for the
competitive market and operates natural gas storage, production and
transportation assets. Sempra Energy Resources' power plants use state-
of-the-art, combined-cycle power generation technology and natural gas to
generate electricity for the wholesale market and retail electric
providers, including utilities, marketers and large energy users.
. Sempra Energy International engages in energy-infrastructure projects
outside the United States, including natural gas transmission and
distribution systems. It currently has interests in gas distribution
partnerships in Mexico, Argentina and Uruguay.
Sempra Energy Holdings may, in the future, engage in other businesses.
Sempra Energy Holdings' offices are located at 101 Ash Street, San Diego,
California 92101 and the telephone number is (619) 696-2034.
4
<PAGE>
THE TRUSTS
Sempra Energy created three Delaware business trusts pursuant to three
Declarations of Trust. The trusts are named Sempra Energy Capital Trust I,
Sempra Energy Capital Trust II and Sempra Energy Capital Trust III. Sempra
Energy will file an Amended and Restated Declaration of Trust (a "Declaration")
for each trust, which will state the terms and conditions for each trust to
issue and sell its preferred securities and common securities. A form of
Declaration is filed as an exhibit to the registration statement of which this
prospectus forms a part.
Each trust will exist solely to:
. issue and sell its preferred securities (representing undivided
beneficial interests in the trust) to the public;
. issue and sell its common securities (representing undivided beneficial
interests in the trust) to Sempra Energy;
. use the proceeds from the sale of its preferred and common securities to
purchase a series of Sempra Energy's subordinated debt securities;
. distribute the cash payments it receives on the subordinated debt
securities it owns to the holders of the preferred and common securities;
. maintain its status as a grantor trust for federal income tax purposes;
and
. engage in other activities that are necessary or incidental to these
purposes.
Sempra Energy will purchase all of the common securities of each trust. The
common securities will represent an aggregate liquidation amount equal to at
least 3% of each trust's total capitalization. The preferred securities will
represent the remaining 97% of the trust's total capitalization. The common
securities will have terms substantially identical to, and will rank equal in
priority of payment with, the preferred securities. However, if Sempra Energy
defaults on the related subordinated debt securities, then cash distributions
and liquidation, redemption and other amounts payable on the common securities
will be subordinate to the preferred securities in priority of payment.
The preferred securities will be guaranteed by Sempra Energy as described
later in this prospectus.
Sempra Energy has appointed five trustees to conduct each trust's business
and affairs:
. The Bank of New York ("property trustee");
. The Bank of New York ("Delaware trustee"); and
. Three Sempra Energy officers ("regular trustees").
Only Sempra Energy, as owner of the common securities, can remove or replace
the trustees. In addition, Sempra Energy can increase or decrease the number of
trustees. However, the majority of trustees will always be regular trustees.
Sempra Energy will pay all fees and expenses related to each trust and each
offering of the related preferred securities and will pay all ongoing costs and
expenses of each trust, except the respective trust's obligations under the
related preferred and common securities.
5
<PAGE>
The trusts will not have separate financial statements. The statements would
not be material to holders of the preferred securities because no trust will
have any independent operations. Each trust exists solely for the reasons
summarized above.
USE OF PROCEEDS
Unless stated otherwise in the applicable prospectus supplement, the net
proceeds from the sale of the offered securities will be:
. used by Sempra Energy and/or its subsidiaries for general corporate
purposes, including investing in unregulated business activities and
reducing short-term debt incurred to provide interim financing for such
purposes; and
. used by the respective trusts to purchase subordinated debt securities of
Sempra Energy.
RATIO OF SEMPRA ENERGY EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of Sempra Energy earnings to
combined fixed charges and preferred stock dividends for Sempra Energy for each
of the five years in the five-year period ended December 31, 1998:
<TABLE>
<CAPTION>
December 31,
------------------------
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends..................... 2.94 3.13 3.67 3.75 2.73
</TABLE>
6
<PAGE>
DESCRIPTION OF SECURITIES
The following is a general description of the terms and provisions of the
securities we may offer and sell by this prospectus. These summaries are not
meant to be a complete description of each security. This prospectus and any
accompanying prospectus supplement will contain the material terms and
conditions for each security. The prospectus supplement may add, update or
change the terms and conditions of the securities as described in this
prospectus. For more information about the securities offered by us, please
refer to:
. the indenture between Sempra Energy and Citibank, N.A., as trustee
relating to the issuance of each series of senior debt securities by
Sempra Energy;
. the indenture ("subordinated indenture") between Sempra Energy and The
Bank of New York, as trustee relating to the issuance of each series of
subordinated debt securities by Sempra Energy;
. the indenture among Sempra Energy Holdings, Sempra Energy, as Guarantor
and U.S. Bank Trust Company, as trustee relating to the issuance of each
series of senior debt securities by Sempra Energy Holdings;
. the Declaration of each trust; and
. Sempra Energy's guarantee of the preferred securities issued by each
trust.
Forms of these documents are filed as exhibits to the registration statement.
The indentures listed above are sometimes collectively referred to as the
"indentures" and individually referred to as an "indenture." The indentures are
subject to and governed by the Trust Indenture Act of 1939, as amended, and may
be supplemented or amended from time to time following their execution.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth the general terms and provisions of the
debt securities that Sempra Energy and Sempra Energy Holdings may offer by this
prospectus. The debt securities may be issued as senior debt securities or
subordinated debt securities in the case of Sempra Energy and as senior debt
securities in the case of Sempra Energy Holdings. The indebtedness represented
by the senior debt securities will rank equally with all other unsecured and
unsubordinated debt of the company issuing the senior debt security (either
Sempra Energy or Sempra Energy Holdings). The indebtedness represented by the
subordinated debt securities will rank junior and subordinate in right of
payment to the prior payment in full of the senior debt of Sempra Energy, to
the extent and in the manner set forth in the prospectus supplement for the
securities. See "--Subordination" below. Throughout this description,
references to "we," "us" and "our" should be read to refer to the company
issuing the particular securities, unless the context indicates that "we," "us"
or "our" refers to both Sempra Energy and Sempra Energy Holdings.
Each indenture gives us broad authority to set the particular terms of each
series of debt securities, including the right to modify certain of the terms
contained in the indenture. The particular terms of a series of debt securities
and the extent, if any, to which the particular terms of the issue modify the
terms of the indenture will be described in the prospectus supplement relating
to the debt securities.
Each indenture contains the full legal text of the matters described in this
section. Because this section is a summary, it does not describe every aspect
of the debt securities or the applicable
7
<PAGE>
indentures. This summary is subject to and qualified in its entirety by
reference to all the provisions of the applicable indenture, including
definitions of terms used in the indenture. We also include references in
parentheses to certain sections of the indentures. Whenever we refer to
particular sections or defined terms of the indentures in this prospectus or in
a prospectus supplement, these sections or defined terms are incorporated by
reference herein or in the prospectus supplement. This summary also is subject
to and qualified by reference to the description of the particular terms of the
debt securities described in the applicable prospectus supplement or
supplements.
General
We may issue an unlimited amount of debt securities under the indentures in
one or more series. We need not issue all debt securities of one series at the
same time and, unless otherwise provided, we may reopen a series, without the
consent of the holders of the debt securities of that series, for issuances of
additional debt securities of that series.
The debt securities of Sempra Energy and Sempra Energy Holdings will be
unsecured obligations of the company issuing the security, and the debt
securities of Sempra Energy Holdings will be unconditionally guaranteed by
Sempra Energy as to payment of principal, premium, if any, and interest. See
"Guarantee of Sempra Energy; Holding Company Structure."
Prior to the issuance of each series of debt securities, the terms of the
particular securities will be specified in a supplemental indenture (including
any pricing supplement) and a board resolution of the issuing company or in one
or more officer's certificates of the issuing company pursuant to a
supplemental indenture or a board resolution. We refer you to the applicable
prospectus supplement for a description of the following terms of the series of
debt securities:
(a) the title of the debt securities;
(b) any limit upon the principal amount of the debt securities;
(c) the date or dates on which principal will be payable or how to
determine the dates;
(d) the rate or rates or method of determination of interest; the date from
which interest will accrue; the dates on which interest will be
payable, which we refer to as the "interest payment dates;" and any
record dates for the interest payable on the interest payment dates;
(e) any obligation or option of the issuing company to redeem, purchase or
repay debt securities, or any option of the registered holder to
require the issuing company to redeem or repurchase debt securities,
and the terms and conditions upon which the debt securities will be
redeemed, purchased or repaid;
(f) the denominations in which the debt securities will be issuable (if
other than denominations of $1,000 and any integral multiple thereof);
(g) whether the debt securities are to be issued in whole or in part in the
form of one or more global debt securities and, if so, the identity of
the depositary for the global debt securities; and
(h) any other terms of the debt securities.
(See Section 301.)
8
<PAGE>
Guarantee of Sempra Energy; Holding Company Structure
Sempra Energy will unconditionally guarantee the payment of principal of and
any premium and interest on the debt securities issued by Sempra Energy
Holdings, when due and payable, whether at the stated maturity date, by
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of the debt securities and the indenture. These guarantees are
referred to as the "debt securities guarantees" in this prospectus. The debt
securities guarantees will remain in effect until the entire principal of and
any premium and interest on the debt securities has been paid in full or
otherwise discharged in accordance with the provisions of the indenture. (See
Article Fourteen.)
Sempra Energy conducts its operations primarily through its subsidiaries and
substantially all of its consolidated assets are held by its subsidiaries.
Accordingly, Sempra Energy's cash flow and its ability to meet its obligations
under its debt securities and the debt securities guarantees are largely
dependent upon the earnings of its subsidiaries and the distribution or other
payment of these earnings to Sempra Energy in the form of dividends or loans or
advances and repayment of loans and advances from Sempra Energy. The
subsidiaries are separate and distinct legal entities and have no obligation to
pay any amounts due on the Sempra Energy debt securities or to make any funds
available for payment of amounts due on these debt securities or, except for
Sempra Energy Holdings, the debt securities guarantees.
Because Sempra Energy is a holding company, its obligations under the debt
securities and the debt securities guarantees will be effectively subordinated
to all existing and future liabilities of its subsidiaries. Therefore, Sempra
Energy's rights and the rights of its creditors, including the rights of the
holders of the debt securities issued by Sempra Energy and any debt securities
guarantees, to participate in the assets of any subsidiary upon the liquidation
or reorganization of the subsidiary will be subject to the prior claims of the
subsidiary's creditors. To the extent that Sempra Energy may itself be a
creditor with recognized claims against any of its subsidiaries, Sempra
Energy's claims would still be effectively subordinated to any security
interest in, or mortgages or other liens on, the assets of the subsidiary and
would be subordinated to any indebtedness or other liabilities of the
subsidiary senior to that held by Sempra Energy. Although agreements to which
Sempra Energy and its subsidiaries are parties limit the incurrence of
additional indebtedness, both Sempra Energy and its subsidiaries retain the
ability to incur substantial additional indebtedness and other liabilities.
In addition, Sempra Energy Holdings also conducts its operations primarily
through its subsidiaries and substantially all of its consolidated assets are
held by its subsidiaries. Accordingly, the discussion above is equally
applicable to Sempra Energy Holdings and the debt securities it issues.
Payment of Debt Securities--Interest
Unless indicated differently in a prospectus supplement, we will pay interest
on the debt security on each interest payment date by check mailed to the
person in whose name the debt security is registered as of the close of
business on the regular record date relating to the interest payment date,
except that interest payable at stated maturity, upon redemption or otherwise,
will be paid to the person to whom principal is paid.
However, if we default in paying interest on a debt security, we will pay
defaulted interest in either of the two following ways:
(a) We will first propose to the trustee a payment date for the defaulted
interest. Next, the trustee will choose a special record date for
determining which registered holders are
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entitled to the payment. The special record date will be between 10 and
15 days before the payment date we propose. Finally, we will pay the
defaulted interest on the payment date to the registered holder of the
debt security as of the close of business on the special record date.
(b) Alternatively, we can propose to the trustee any other lawful manner of
payment that is consistent with the requirements of any securities
exchange on which the debt securities are listed for trading. If the
trustee thinks the proposal is practicable, payment will be made as
proposed.
(See Section 307.)
Payment of Debt Securities--Principal
Unless we indicate differently in a prospectus supplement, we will pay
principal of and any premium and interest on the debt securities at stated
maturity, upon redemption or otherwise, upon presentation of the debt
securities at the office of the trustee, as our paying agent. Any other paying
agent initially designated for the debt securities of a particular series will
be named in the applicable prospectus supplement.
In our discretion, we may change the place of payment on the debt
securities, and may remove any paying agent and may appoint one or more
additional paying agents. (See Section 1002.)
Form; Transfers; Exchanges
The debt securities will be issued
(a) only in fully registered form;
(b) without interest coupons; and
(c) in denominations that are even multiples of $1,000.
You may have your debt securities divided into debt securities of smaller
denominations (of at least $1,000) or combined into debt securities of larger
denominations, as long as the total principal amount is not changed. This is
called an "exchange."
You may exchange or transfer debt securities at the office of the trustee.
The trustee acts as our agent for registering debt securities in the names of
holders and transferring debt securities. We may appoint another agent or act
as our own agent for this purpose. The entity performing the role of
maintaining the list of registered holders is called the "security registrar."
It will also perform transfers.
In our discretion, we may change the place for registration of transfer of
the debt securities and may remove and/or appoint one or more additional
security registrars. (See Sections 305 and 1002.)
Except as otherwise provided in a prospectus supplement, there will be no
service charge for any transfer or exchange of the debt securities, but you
may be required to pay a sum sufficient to cover any tax or other governmental
charge payable in connection with the transfer or exchange. We may block the
transfer or exchange of (a) debt securities during a period of 15 days prior
to giving any notice of redemption or (b) any debt security selected for
redemption in whole or in part, except the unredeemed portion of any debt
security being redeemed in part. (See Section 305.)
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Redemption
We will set forth any terms for the redemption of debt securities in a
prospectus supplement. Unless we indicate differently in a prospectus
supplement, and except with respect to debt securities redeemable at the option
of the registered holder, debt securities will be redeemable upon notice by
mail between 30 and 60 days prior to the redemption date. If less than all of
the debt securities of any series or any tranche of a series are to be
redeemed, the trustee will select the debt securities to be redeemed. In the
absence of any provision for selection, the trustee will choose a method of
random selection it deems fair and appropriate. (See Sections 1102, 1103 and
1104.)
Debt securities will cease to bear interest on the redemption date. We will
pay the redemption price and any accrued interest once you surrender the debt
security for redemption. (See Section 1105.) If only part of a debt security is
redeemed, the trustee will deliver to you a new debt security of the same
series for the remaining portion without charge. (Section 1106.)
We may make any redemption conditional upon the receipt by the paying agent,
on or prior to the date fixed for redemption, of money sufficient to pay the
redemption price. If the paying agent has not received the money by the date
fixed for redemption, we will not be required to redeem the debt securities.
(See Section 1104.)
Events of Default
An "event of default" occurs with respect to debt securities of any series
if:
(a) we do not pay any interest on any debt securities of the applicable
series within 60 days of the due date;
(b) we do not pay principal or premium on any debt securities of the
applicable series on its due date;
(c) we remain in breach of a covenant or warranty (excluding covenants and
warranties solely applicable to a specific series) of the indenture for
90 days after we receive a written notice of default stating we are in
breach and requiring remedy of the breach; the notice must be sent by
either the trustee or registered holders of 25% of the principal amount
of debt securities of the affected series;
(d) the debt securities guarantees on any series
(1) cease to be effective (except in accordance with their terms),
(2) are found in any judicial proceeding to be unenforceable or
invalid, or
(3) are denied or disaffirmed (except in accordance with their terms);
(e) we file for bankruptcy or other specified events in bankruptcy,
insolvency, receivership or reorganization occur; or
(f) any other event of default specified in the prospectus supplement
occurs.
(See Section 501.)
No event of default with respect to a series of debt securities necessarily
constitutes an event of default with respect to the debt securities of any
other series issued under the indenture.
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Remedies
Acceleration
If an event of default occurs and is continuing with respect to any series of
debt securities, then either the trustee or the registered holders of 25% in
principal amount of the outstanding debt securities of that series may declare
the principal amount of all of the debt securities of that series to be due and
payable immediately. (See Section 502.)
Rescission of Acceleration
After the declaration of acceleration has been made and before the trustee
has obtained a judgment or decree for payment of the money due, the declaration
and its consequences will be rescinded and annulled, if
(a) we pay or deposit with the trustee a sum sufficient to pay
(1) all overdue interest;
(2) the principal of and any premium which have become due otherwise
than by the declaration of acceleration and overdue interest on
these amounts;
(3) interest on overdue interest to the extent lawful;
(4) all amounts due to the trustee under the indenture; and
(b) all events of default, other than the nonpayment of the principal which
has become due solely by the declaration of acceleration, have been
cured or waived as provided in the indenture.
(See Section 502.)
For more information as to waiver of defaults, see "Waiver of Default and of
Compliance" below.
Control by Registered Holders; Limitations
Subject to the indenture, if an event of default with respect to the debt
securities of any one series occurs and is continuing, the registered holders
of a majority in principal amount of the outstanding debt securities of that
series will have the right to
(a) direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or
(b) exercise any trust or power conferred on the trustee with respect to
the debt securities of the series.
If an event of default is continuing with respect to more than one series of
debt securities, the registered holders of a majority in aggregate principal
amount of the outstanding debt securities of all the series, considered as one
class, will have the right to make such direction, and not the registered
holders of the debt securities of any one of the series. These rights of
registered holders to make direction are subject to the following limitations:
(a) the registered holders' directions will not conflict with any law or
the indenture; and
(b) the registered holders' directions may not involve the trustee in
personal liability where the trustee believes indemnity is not
adequate.
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The trustee may also take any other action it deems proper which is
consistent with the registered holders' direction. (See Sections 512 and 603.)
In addition, the indenture provides that no registered holder of any debt
security will have any right to institute any proceeding, judicial or
otherwise, with respect to the indenture for the appointment of a receiver or
for any other remedy thereunder unless
(a) that registered holder has previously given the trustee written notice
of a continuing event of default;
(b) the registered holders of 25% in aggregate principal amount of the
outstanding debt securities of all affected series, considered as one
class, have made written request to the trustee to institute
proceedings in respect of that event of default and have offered the
trustee reasonable indemnity against costs and liabilities incurred in
complying with the request; and
(c) for 60 days after receipt of the notice, the trustee has failed to
institute a proceeding and no direction inconsistent with the request
has been given to the trustee during the 60-day period by the
registered holders of a majority in aggregate principal amount of
outstanding debt securities of all affected series, considered as one
class.
Furthermore, no registered holder will be entitled to institute any action if
and to the extent that the action would disturb or prejudice the rights of
other registered holders. (See Sections 507 and 603.)
However, each registered holder has an absolute and unconditional right to
receive payment when due and to bring a suit to enforce that right. (See
Sections 507 and 508.)
Notice of Default
The trustee is required to give the registered holders of the debt securities
notice of any default under the indenture to the extent required by the Trust
Indenture Act, unless the default has been cured or waived; except that in the
case of an event of default of the character specified above in clause (c)
under "Events of Default," no notice shall be given to the registered holders
until at least 75 days after the occurrence thereof. (See Section 602.) The
Trust Indenture Act currently permits the trustee to withhold notices of
default (except for certain payment defaults) if the trustee in good faith
determines the withholding of the notice to be in the interests of the
registered holders.
We will furnish the trustee with an annual statement as to the compliance by
the company issuing the debt security with the conditions and covenants in the
indenture. (See Section 1005.)
Waiver of Default and of Compliance
The registered holders of a majority in aggregate principal amount of the
outstanding debt securities of any series may waive, on behalf of the
registered holders of all debt securities of the series, any past default under
the indenture, except a default in the payment of principal, premium or
interest, or with respect to compliance with certain provisions of the
indenture that cannot be amended without the consent of the registered holder
of each outstanding debt security. (See Section 513.)
Compliance with certain covenants in the indenture or otherwise provided with
respect to debt securities may be waived by the registered holders of a
majority in aggregate principal amount of the affected debt securities,
considered as one class. (See Section 1006.)
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Consolidation, Merger and Conveyance of Assets as an Entirety; No Financial
Covenants
Subject to the provisions described in the next paragraph, each of Sempra
Energy and Sempra Energy Holdings will preserve its corporate existence. (See
Section 1004.)
Sempra Energy and Sempra Energy Holdings have each agreed not to consolidate
with or merge into any other entity, and Sempra Energy has agreed not to
convey, transfer or lease its properties and assets substantially as an
entirety to any entity, unless:
(a) the entity formed by the consolidation or into which Sempra Energy or
Sempra Energy Holdings, as the case may be, is merged, or the entity
which acquires or which leases the property and assets of Sempra Energy
substantially as an entirety, is an entity organized and existing under
the laws of the United States of America or any State thereof or the
District of Columbia, and expressly assumes, by supplemental indenture,
the due and punctual payment of the principal, premium and interest on
all the outstanding debt securities (or the debt securities guarantees
endorsed thereon, as the case may be) and the performance of all of the
covenants of Sempra Energy or Sempra Energy Holdings, as the case may
be, under the indenture, and
(b) immediately after giving effect to the transactions, no event of
default, and no event which after notice or lapse of time or both would
become an event of default, will have occurred and be continuing.
(See Section 801.)
Neither the indenture nor the debt security guarantee contains any financial
or other similar restrictive covenants. Any such covenants with respect to any
particular series of debt securities will be set forth in the applicable
prospectus supplement.
Modification of Indenture
Without Registered Holder Consent. Without the consent of any registered
holders of debt securities, we and the applicable trustee may enter into one or
more supplemental indentures for any of the following purposes:
(a) to evidence the succession of another entity to Sempra Energy or Sempra
Energy Holdings; or
(b) to add one or more covenants of Sempra Energy or Sempra Energy Holdings
or other provisions for the benefit of the registered holders of all or
any series or tranche of debt securities, or to surrender any right or
power conferred upon Sempra Energy or Sempra Energy Holdings; or
(c) to add any additional events of default for all or any series of debt
securities; or
(d) to change or eliminate any provision of the indenture or to add any new
provision to the indenture that does not adversely affect the interests
of the registered holders; or
(e) to provide security for the debt securities of any series; or
(f) to establish the form or terms of debt securities of any series or
tranche or any debt securities guarantees as permitted by the
indenture; or
(g) to provide for the issuance of bearer securities; or
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(h) to evidence and provide for the acceptance of appointment of a separate
or successor trustee; or
(i) to provide for the procedures required to permit the utilization of a
noncertificated system of registration for any series or tranche of
debt securities; or
(j) to change any place or places where
(1) we may pay principal, premium and interest,
(2) debt securities may be surrendered for transfer or exchange, or
(3) notices and demands to or upon Sempra Energy or Sempra Energy
Holdings may be served; or
(k) to cure any ambiguity, defect or inconsistency or to make any other
changes that do not adversely affect the interests of the registered
holders in any material respect.
(See Section 901.)
If the Trust Indenture Act is amended after the date of the indenture so as
to require changes to the indenture or so as to permit changes to, or the
elimination of, provisions which, at the date of the indenture or at any time
thereafter, were required by the Trust Indenture Act to be contained in the
indenture, the indenture will be deemed to have been amended so as to conform
to the amendment or to effect the changes or elimination, and Sempra Energy,
Sempra Energy Holdings and the applicable trustee may, without the consent of
any registered holders, enter into one or more supplemental indentures to
effect or evidence the amendment.
With Registered Holder Consent. We and the trustee may, with some exceptions,
amend or modify any indenture with the consent of the registered holders of at
least a majority in aggregate principal amount of the debt securities of all
series affected by the amendment or modification (voting as one class).
However, no amendment or modification may, without the consent of the
registered holder of each outstanding debt security directly affected thereby,
(a) change the stated maturity of the principal or interest on any debt
security (other than pursuant to the terms thereof), or reduce the
principal amount, interest or premium payable or change the currency in
which any debt security is payable, or impair the right to bring suit
to enforce any payment;
(b) reduce the percentages of registered holders whose consent is required
for any supplemental indenture or waiver or reduce the requirements for
quorum and voting under the indenture; or
(c) modify certain of the provisions in the indenture relating to
supplemental indentures and waivers of certain covenants and past
defaults.
A supplemental indenture which changes or eliminates any provision of the
indenture expressly included solely for the benefit of registered holders of
debt securities of one or more particular series or tranches will be deemed not
to affect the rights under the indenture of the registered holders of debt
securities of any other series or tranche. (See Section 902.)
Miscellaneous Provisions
The indenture provides that certain debt securities, including those for
which payment or redemption money has been deposited or set aside in trust as
described under "Satisfaction and
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Discharge" below, will not be deemed to be "outstanding" in determining whether
the registered holders of the requisite principal amount of the outstanding
debt securities have given or taken any demand, direction, consent or other
action under the indenture as of any date, or are present at a meeting of
registered holders for quorum purposes. (See Section 101.)
We will be entitled to set any day as a record date for the purpose of
determining the registered holders of outstanding debt securities of any series
entitled to give or take any demand, direction, consent or other action under
the indenture, in the manner and subject to the limitations provided in the
indenture. In certain circumstances, the trustee also will be entitled to set a
record date for action by registered holders. If a record date is set for any
action to be taken by registered holders of particular debt securities, the
action may be taken only by persons who are registered holders of the
respective debt securities on the record date. (See Section 104.)
Defeasance and Covenant Defeasance
The indentures provide, unless the terms of the particular series of debt
securities provide otherwise, that we may, upon satisfying several conditions,
cause ourselves to be:
(a) discharged from our obligations, with some exceptions, with respect to
any series of debt securities, which we refer to as "defeasance"; and
(b) released from our obligations under certain covenants with respect to
any series of debt securities, which we refer to as "covenant
defeasance".
One condition we must satisfy is the irrevocable deposit with the trustee, in
trust, of money and/or government obligations which, through the scheduled
payment of principal and interest on those obligations, would provide
sufficient moneys to pay the principal of and any premium and interest on those
debt securities on the maturity dates of the payments or upon redemption.
The indentures permit defeasance with respect to any series of debt
securities even if a prior covenant defeasance has occurred with respect to the
debt securities of that series. Following a defeasance, payment of the debt
securities defeased may not be accelerated because of an event of default.
Following a covenant defeasance, payment of the debt securities may not be
accelerated by reference to the covenants described in the description of
covenant defeasance above. However, if such an acceleration were to occur, the
realizable value at the acceleration date of the money and government
obligations in the defeasance trust could be less than the principal and
interest then due on the respective debt securities, since the required deposit
in the defeasance trust would be based upon scheduled cash flows rather than
market value, which would vary depending upon interest rates and other factors.
Under current United States federal income tax law, the defeasance
contemplated in the preceding paragraphs would be treated as an exchange of the
relevant debt securities in which holders of the debt securities might
recognize gain or loss. In addition, the amount, timing and character of
amounts that holders would be required thereafter to include in income might be
different from that which would be includible in the absence of such
defeasance. Prospective investors are urged to consult their own tax advisors
as to the specific consequences of a defeasance, including the applicability
and effect of tax laws other than United States federal income tax laws.
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Under current United States federal income tax laws, unless accompanied by
other changes in the terms of the debt securities, covenant defeasance should
not be treated as a taxable exchange.
Resignation and Removal of the Trustee; Deemed Resignation
The trustee may resign at any time by giving written notice to us.
The trustee may also be removed by act of the registered holders of a
majority in principal amount of the then outstanding debt securities of any
series.
No resignation or removal of the trustee and no appointment of a successor
trustee will become effective until the acceptance of appointment by a
successor trustee in accordance with the requirements of the indenture.
Under certain circumstances, we may appoint a successor trustee and if the
successor accepts, the trustee will be deemed to have resigned.
(Section 610).
Subordination
Unless we indicate differently in a prospectus supplement, any subordinated
debt securities will be subordinated in the following manner. If Sempra
Energy's assets are distributed upon our dissolution, winding up, liquidation
or reorganization, the payment of the principal of (and premium, if any) and
interest on any subordinated debt securities will be subordinated, to the
extent provided in the subordinated debt security indenture and the applicable
supplemental indenture, to the prior payment in full of all senior
indebtedness, including senior debt securities. However, Sempra Energy's
obligation to pay principal (and premium, if any) or interest on the
subordinated debt securities will not otherwise be affected. No payment on
account of principal (or premium, if any), sinking fund or interest may be made
on the subordinated debt securities at any time when there is a default in the
payment of principal, premium, if any, sinking fund or interest on senior
indebtedness. If, while Sempra Energy is in default on senior indebtedness, any
payment is received by the trustee under the subordinated debt security
indenture or the holders of any of the subordinated debt securities before it
has paid all senior indebtedness in full, the payment or distribution must be
paid over to the holders of the unpaid senior indebtedness or applied to the
repayment of the unpaid senior indebtedness. Subject to paying the senior
indebtedness in full, the holders of the subordinated debt securities will be
subrogated to the rights of the holders of the senior indebtedness to the
extent that payments are made to the holders of senior indebtedness out of the
distributive share of the subordinated debt securities.
Due to the subordination, if Sempra Energy's assets are distributed upon
insolvency, certain of its general creditors may recover more, ratably, than
holders of subordinated debt securities. The subordinated debt security
indenture or applicable supplemental indenture may state that its subordination
provisions will not apply to money and securities held in trust under the
satisfaction and discharge, and the legal defeasance provisions of the
subordinated debt security indenture.
If this prospectus is being delivered in connection with the offering of a
series of subordinated debt securities, the accompanying prospectus supplement
or the information incorporated by reference in it will set forth the
approximate amount of senior indebtedness outstanding as of a recent date.
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Conversion Rights
The terms and conditions of any debt securities being offered that are
convertible into common stock of Sempra Energy will be set forth in a
prospectus supplement. These terms will include the conversion price, the
conversion period, provisions as to whether conversion will be at the option of
the holder or us, the events requiring an adjustment of the conversion price
and provisions affecting conversion in the event that the debt securities are
redeemed.
Governing Law
Each indenture and the related debt securities will be governed by and
construed in accordance with the laws of the State of New York.
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DESCRIPTION OF SEMPRA ENERGY'S
COMMON STOCK AND PREFERRED STOCK
The following description of Sempra Energy's common stock and preferred stock
is only a summary and is qualified in its entirety by reference to the articles
of incorporation and bylaws of Sempra Energy. Therefore, you should read
carefully the more detailed provisions of Sempra Energy's Amended and Restated
Articles of Incorporation, Sempra Energy's Amended and Restated Bylaws, and
Sempra Energy's Rights Agreement, dated May 26, 1998, between Sempra Energy and
First Chicago Trust Company of New York, as rights agent, copies of which are
incorporated by reference as exhibits to the registration statement of which
this prospectus is a part.
General
The authorized capital stock of Sempra Energy consists of (1) 750,000,000
shares of Sempra Energy common stock, without par value, and (2) 50,000,000
shares of preferred stock, without par value. As of February 27, 1999, there
were issued and outstanding 240,119,972 shares of Sempra Energy common stock
and no shares of Sempra Energy preferred stock. No other classes of capital
stock are authorized under the Sempra Energy articles of incorporation. The
issued and outstanding shares of Sempra Energy common stock are duly
authorized, validly issued, fully paid, nonassessable and free of preemptive
rights.
Sempra Energy Common Stock
The holders of Sempra Energy common stock are entitled to receive such
dividends as the Sempra Energy board of directors may from time to time
declare, subject to any rights of holders of outstanding shares of Sempra
Energy preferred stock. Except as otherwise provided by law, each holder of
Sempra Energy common stock is entitled to one vote per share on each matter
submitted to a vote of a meeting of shareholders, subject to any class or
series voting rights of holders of Sempra Energy preferred stock. Under the
Sempra Energy articles of incorporation, the Sempra Energy board of directors
is classified into three classes each consisting of a number as nearly equal as
possible to one-third of the total number of directors constituting the entire
Sempra Energy board of directors. The holders of shares of Sempra Energy common
stock are not entitled to cumulate votes for the election of directors.
In the event of any liquidation, dissolution or winding up of Sempra Energy,
whether voluntary or involuntary, the holders of shares of Sempra Energy common
stock, subject to any rights of the holders of outstanding shares of Sempra
Energy preferred stock, are entitled to receive any remaining assets of Sempra
Energy after the discharge of its liabilities.
Holders of Sempra Energy common stock are not entitled to preemptive rights
to subscribe for or purchase any part of any new or additional issue of stock
or securities convertible into stock. Sempra Energy common stock does not
contain any redemption provisions or conversion rights and is not liable to
assessment or further call.
Each outstanding share of Sempra Energy common stock is accompanied by a
right to purchase one one-hundredth of a share of Class A Junior Participating
Preferred Stock, without par value, of Sempra Energy at a price of $80.00 per
right, subject to certain anti-dilution adjustments. The Sempra Energy board of
directors has reserved 7,500,000 shares of such Class A
preferred stock for issuance upon exercise of the rights, as more fully
discussed below under the heading "--Description of Preferred Share Purchase
Rights."
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The registrar and transfer agent for the Sempra Energy common stock is First
Chicago Trust Company of New York.
Preferred Stock
The Sempra Energy board of directors is authorized, pursuant to the Sempra
Energy articles of incorporation, to issue up to 50,000,000 shares of Sempra
Energy preferred stock in one or more series and to fix and determine the
number of shares of preferred stock of any series, to determine the designation
of any such series, to increase or decrease the number of shares of any such
series subsequent to the issue of shares of that series, and to determine or
alter the rights, preferences, privileges and restrictions granted to or
imposed upon any such series. Currently there are no shares of Sempra Energy
preferred stock outstanding. However, the Sempra Energy board of directors has
reserved 7,500,000 shares of Class A preferred stock for issuance in connection
with rights issued under the Sempra Energy rights agreement.
Prior to the issuance of shares of each series of preferred stock, the board
of directors is required to adopt resolutions and file a certificate of
determination with the Secretary of State of the State of California. The
certificate of determination will fix for each series the designation and
number of shares and the rights, preferences, privileges and restrictions of
the shares including, but not limited to, the following:
(a) the title and stated value of the preferred stock;
(b) voting rights, if any, of the preferred stock;
(c) any rights and terms of redemption (including sinking fund provisions);
(d) the dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation applicable to the preferred stock;
(e) whether dividends are cumulative or non-cumulative and, if cumulative,
the date from which dividends on the preferred stock will accumulate;
(f) the relative ranking and preferences of the preferred stock as to
dividend rights and rights upon the liquidation, dissolution or winding
up of our affairs;
(g) the terms and conditions, if applicable, upon which the preferred stock
will be convertible into common stock, including the conversion price
(or manner of calculation) and conversion period;
(h) the provision for redemption, if applicable, of the preferred stock;
(i) the provisions for a sinking fund, if any, for the preferred stock;
(j) liquidation preferences;
(k) any limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the class or series of preferred
stock as to dividend rights and rights upon liquidation, dissolution or
winding up of our affairs; and
(l) any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock.
All shares of preferred stock will, when issued, be fully paid and
nonassessable and will not have any preemptive or similar rights.
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In addition to the terms listed above, we will set forth in a prospectus
supplement the following terms relating to the class or series of preferred
stock being offered:
(a) the number of shares of the preferred stock offered, the liquidation
preference per share and the offering price of the preferred stock;
(b) the procedures for any auction and remarketing, if any, for the
preferred stock;
(c) any listing of the preferred stock on any securities exchange; and
(d) a discussion of any material and/or special United States federal
income tax considerations applicable to the preferred stock.
Rank
Unless we specify otherwise in the applicable prospectus supplement, the
preferred stock will rank, with respect to dividends and upon our liquidation,
dissolution or winding up:
(a) senior to all classes or series of our common stock and to all of our
equity securities ranking junior to the preferred stock;
(b) on a parity with all of our equity securities the terms of which
specifically provide that the equity securities rank on a parity with
the preferred stock; and
(c) junior to all of our equity securities the terms of which specifically
provide that the equity securities rank senior to the preferred stock.
Description of Preferred Share Purchase Rights
On May 26, 1998, the Sempra Energy board of directors adopted a preferred
share purchase rights plan providing that one preferred share purchase right
will attach to each share of Sempra Energy common stock. The description and
terms of the rights are set forth in a rights agreement, dated as of May 26,
1998, by and between Sempra Energy and First Chicago Trust Company of New York,
as rights agent. The purchase rights have an anti-takeover effect that is
intended to discourage coercive or unfair takeover tactics and to encourage any
potential acquirer to negotiate a fair price to all Sempra Energy shareholders.
The purchase rights may cause substantial dilution to any party that may
attempt to acquire Sempra Energy on terms not approved by the Sempra Energy
board of directors. However, the purchase rights are structured in a way so as
not to interfere with any negotiated merger or other business combination. The
rights will expire on May 31, 2008. Until a right is exercised, the holder of
the right will have no rights as a shareholder of Sempra Energy beyond those
rights afforded to existing shareholders, including the right to vote or to
receive dividends.
The rights are designed to assure that all of Sempra Energy's shareholders
receive fair and equal treatment in the event of any proposed takeover of
Sempra Energy and to guard against partial tender offers, open market
accumulations and other abusive tactics that may be deployed to gain control of
Sempra Energy without a control premium paid to all shareholders. Any time
prior to the first date that a person or group has become an "acquiring person"
as defined in the rights agreement, the rights should not interfere with any
merger or other business combination as long as it is approved by the Sempra
Energy board of directors.
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Anti-Takeover Provisions
The Sempra Energy articles of incorporation and bylaws contain provisions
that may have the effect of discouraging persons from acquiring large blocks of
Sempra Energy stock or delaying or preventing a change in control of Sempra
Energy. The material provisions which may have such an effect are:
(a) classification of the Sempra Energy board of directors into three
classes with the term of only one class expiring each year;
(b) a provision permitting the Sempra Energy board of directors to make,
amend or repeal the Sempra Energy bylaws;
(c) authorization for the Sempra Energy board of directors to issue Sempra
Energy preferred stock in series and to fix rights and preferences of
the series (including, among other things, whether, and to what extent,
the shares of any series will have voting rights and the extent of the
preferences of the shares of any series with respect to dividends and
other matters);
(d) a provision that shareholders may take action only at annual or special
meetings or by unanimous written consent in lieu of a meeting;
(e) advance notice procedures with respect to nominations of directors or
proposal other than those adopted or recommended by the Sempra Energy
board of directors; and
(f) provisions permitting amendment of certain of these provisions only by
an affirmative vote of the holders of at least two-thirds of the
outstanding shares of Sempra Energy common stock entitled to vote.
Some acquisitions of Sempra Energy's outstanding voting shares would also
require approval of the SEC under the Public Utility Holding Company Act of
1935 and of various state and foreign regulatory authorities.
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DESCRIPTION OF PREFERRED SECURITIES
General
Each Declaration authorizes the regular trustees to issue on behalf of each
trust one series of preferred securities which will have the terms described in
a prospectus supplement. The proceeds from the sale of a trust's preferred and
common securities will be used by the trust to purchase a series of
subordinated debt securities issued by Sempra Energy. The subordinated debt
securities will be held in trust by the property trustee for the benefit of the
holders of the preferred and common securities.
Under each preferred securities guarantee, Sempra Energy will agree to make
payments of distributions and payments on redemption or liquidation with
respect to a trust's preferred securities, but only to the extent the trust has
funds available to make those payments and has not made the payments. See
"Description of Preferred Securities Guarantees."
The assets of a trust available for distribution to the holders of its
preferred securities will be limited to payments from Sempra Energy under the
series of subordinated debt securities held by the trust. If Sempra Energy
fails to make a payment on the subordinated debt securities, the trust will not
have sufficient funds to make related payments, including distributions, on its
preferred securities.
Each preferred securities guarantee, when taken together with Sempra Energy's
obligations under the related series of subordinated debt securities, the
subordinated indenture and the related Declaration, will provide a full and
unconditional guarantee of amounts due on the preferred securities issued by a
trust.
Each Declaration will be qualified as an indenture under the Trust Indenture
Act. Each property trustee will act as indenture trustee for the preferred
securities to be issued by the applicable trust, in order to comply with the
provisions of the Trust Indenture Act.
Each series of preferred securities will have the terms, including
distributions, redemption, voting, liquidation rights and the other preferred,
deferred or other special rights or other restrictions as described in the
relevant Declaration or made part of the Declaration by the Trust Indenture Act
or the Delaware Business Trust Act. The terms of the preferred securities will
mirror the terms of the subordinated debt securities held by the trust.
The prospectus supplement relating to the preferred securities of a trust
will describe the specific terms of the preferred securities, including:
(a) the name of the preferred securities;
(b) the dollar amount and number of securities issued;
(c) any provision relating to deferral of distribution payments;
(d) the annual distribution rate(s) (or method of determining the rate(s)),
the payment date(s) and the record dates used to determine the holders
who are to receive distributions;
(e) the date from which distributions shall be cumulative;
(f) the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions for which the preferred
securities shall be purchased or redeemed, in whole or in part;
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(g) the terms and conditions, if any, upon which the applicable series of
subordinated debt securities may be distributed to holders of the
preferred securities;
(h) the voting rights, if any, of holders of the preferred securities;
(i) any securities exchange on which the preferred securities will be
listed;
(j) whether the preferred securities are to be issued in book-entry form
and represented by one or more global certificates and, if so, the
depository for the global certificates and the specific terms of the
depositary arrangements; and
(k) any other relevant rights, preferences, privileges, limitations or
restrictions of the preferred securities.
Each prospectus supplement will describe certain United States federal income
tax considerations applicable to the purchase, holding and disposition of the
series of preferred securities covered by the prospectus supplement.
Liquidation Distribution Upon Dissolution
Unless otherwise specified in an applicable prospectus supplement, each
Declaration states that the related trust shall be dissolved:
(a) on the expiration of the term of the trust;
(b) upon the bankruptcy of Sempra Energy;
(c) upon the filing of a certificate of dissolution or its equivalent with
respect to Sempra Energy;
(d) after obtaining the consent of at least a majority in liquidation
amount of the preferred and common securities of the trust, voting
together as a single class;
(e) 90 days after the revocation of the articles of incorporation of Sempra
Energy (but only if the articles of incorporation are not reinstated
during that 90-day period);
(f) upon the distribution of the related subordinated debt securities
directly to the holders of the preferred and common securities of the
trust;
(g) upon the redemption of all of the common and preferred securities of
the trust; or
(h) upon entry of a court order for the dissolution of Sempra Energy, or
the trust.
Unless otherwise specified in an applicable prospectus supplement, in the
event of a dissolution, after the trust satisfies (whether by payment or
reasonable provision for payment) all amounts owed to creditors, the holders of
the preferred and common securities will be entitled to receive:
(a) cash equal to the aggregate liquidation amount of each preferred and
common security specified in an accompanying prospectus supplement,
plus accumulated and unpaid distributions to the date of payment;
unless
(b) subordinated debt securities in an aggregate principal amount equal to
the aggregate liquidation amount of the preferred and common securities
are distributed to the holders of the preferred and common securities.
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If the trust cannot pay the full amount due on its preferred and common
securities because insufficient assets are available for payment, then the
amounts payable by the trust on its preferred and common securities shall be
paid pro rata. However, if an event of default under the related Declaration
has occurred, the total amounts due on the preferred securities will be paid
before any distribution on the common securities.
Declaration Events of Default
An event of default under the subordinated indenture relating to a series of
subordinated debt securities is an event of default under the Declaration of
the trust that owns these subordinated debt securities (a "Declaration event of
default"). See "Description of Debt Securities--Events of Default."
Sempra Energy and the regular trustees of a trust must file annually with the
property trustee for the trust a certificate stating whether or not they are in
compliance with all the applicable conditions and covenants under the related
Declaration.
Upon the occurrence of a Declaration event of default, the property trustee
of the applicable trust, as the sole holder of the subordinated debt securities
held by the trust, will have the right under the subordinated indenture to
declare the principal of, premium, if any, and interest on the subordinated
debt securities to be immediately due and payable.
If a property trustee fails to enforce its rights under the related
Declaration or the subordinated indenture, any holder of the preferred
securities issued by the related trust may, to the fullest extent permitted by
law and subject to the terms of the Declaration and the subordinated indenture,
sue Sempra Energy, or seek other remedies, to enforce the property trustee's
rights under the Declaration or the subordinated indenture without first
instituting a legal proceeding against the property trustee or any other
person.
If Sempra Energy fails to pay principal, premium, if any, or interest on a
series of subordinated debt securities when payable, then a holder of the
related preferred securities issued by a trust which owns the notes may
directly sue Sempra Energy or seek other remedies to collect its pro rata share
of payments owed.
Consolidation, Merger or Amalgamation of the Trusts
A trust may not consolidate, amalgamate, merge with or into, convert into, or
be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other corporation or other body ("Merger
Event"), except as described below or as described in "Liquidation Distribution
Upon Dissolution." A trust may, with the consent of a majority of its regular
trustees and without the consent of the holders of its preferred and common
securities, consolidate, amalgamate, merge with or into, convert into, or be
replaced by another trust, if:
(a) the successor entity either
(1) assumes all of the obligations of the trust relating to its
preferred and common securities; or
(2) substitutes for the trust's preferred and common securities other
securities substantially similar to the preferred and common
securities ("successor securities"), so long as the successor
securities rank the same as the preferred and common securities for
distributions and payments upon liquidation, redemption and
otherwise;
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(b) Sempra Energy acknowledges a trustee of the successor entity who has
the same powers and duties as the property trustee of the trust as the
holder of the particular series of subordinated debt securities;
(c) the preferred securities are listed, or any successor securities will
be listed, upon notice of issuance, on the same national securities
exchange or other organization that the preferred securities are then
listed;
(d) the Merger Event does not cause its preferred securities or successor
securities to be downgraded by any national rating agency;
(e) the Merger Event does not adversely affect the rights, preferences and
privileges of the holders of its preferred and common securities or
successor securities in any material way (other than with respect to
any dilution of the holders' interest in the new entity);
(f) the successor entity has a purpose substantially identical to that of
the trust;
(g) prior to the Merger Event, Sempra Energy has received an opinion of
counsel from a nationally recognized law firm stating that:
(1) the Merger Event does not adversely affect the rights of the
holders of the trust's preferred securities or any successor
securities in any material way (other than with respect to any
dilution of the holders' interest in the new entity); and
(2) following the Merger Event, neither the trust nor the successor
entity will be required to register as an investment company under
the Investment Company Act of 1940, as amended; and
(h) Sempra Energy guarantees the obligations of the successor entity under
the successor securities in the same manner as in the applicable
preferred securities guarantee and the guarantee of the common
securities for the trust.
In addition, unless all of the holders of the preferred and common securities
approve otherwise, a trust shall not consolidate, amalgamate, merge with or
into, convert into, or be replaced by any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it, if the
transaction would cause the trust or the successor entity to be classified
other than as a grantor trust for United States federal income tax purposes.
Voting Rights; Amendment of Declarations
The holders of preferred securities have no voting rights except as discussed
under "--Consolidation, Merger or Amalgamation of the Trusts" and "Description
of the Preferred Securities Guarantees--Amendments and Assignment," and as
otherwise required by law and the Declaration for the trust.
A Declaration may be amended if approved by a majority of the regular
trustees of the applicable trust. However, if any proposed amendment provides
for, or the regular trustees otherwise propose to effect:
(a) any action that would adversely affect the powers, preferences or
special rights of the trust's preferred and common securities, whether
by way of amendment to the Declaration or otherwise; or
(b) the dissolution, winding-up or termination of the trust other than
pursuant to the terms of its Declaration,
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then the holders of the trust's preferred and common securities as a single
class will be entitled to vote on the amendment or proposal. In that case, the
amendment or proposal will be effective only if approved by at least a majority
in liquidation amount of the preferred and common securities affected by the
amendment or proposal.
If any amendment or proposal referred to in clause (a) above would adversely
affect only the preferred securities or the common securities of a trust, then
only the affected class will be entitled to vote on the amendment or proposal
and the amendment or proposal will only be effective with the approval of at
least a majority in liquidation amount of the affected class.
No amendment may be made to a Declaration if the amendment would:
(a) cause the related trust to be characterized as other than a grantor
trust for United States federal income tax purposes;
(b) adversely affect the powers, liabilities or duties of the property
trustee or the Delaware trustee; or
(c) cause the related trust to be deemed to be an "investment company"
which is required to be registered under the Investment Company Act.
The holders of a majority in aggregate liquidation amount of the preferred
securities of each trust have the right to:
(a) direct the time, method and place of conducting any proceeding for any
remedy available to the property trustee of the trust; or
(b) direct the exercise of any trust or power conferred upon the property
trustee under that trust's Declaration, including the right to direct
the property trustee, as the holder of a series of subordinated debt
securities, to:
(1) exercise the remedies available under the subordinated indenture
with respect to the subordinated debt securities;
(2) waive any event of default under the subordinated indenture that is
waivable; or
(3) cancel an acceleration of the principal of the subordinated debt
securities.
However, if the subordinated indenture requires the consent of the holders of
more than a majority in aggregate principal amount of a series of subordinated
debt securities (a "super-majority"), then the property trustee for the series
must get approval of the holders of a super-majority in liquidation amount of
the series of preferred securities.
In addition, before taking any of the foregoing actions, the property trustee
must obtain an opinion of counsel stating that, as a result of the action, the
trust will continue to be classified as a grantor trust for United States
federal income tax purposes.
The property trustee of a trust will notify all preferred securities holders
of the trust of any notice received from the trustee of the subordinated
indenture with respect to the subordinated debt securities held by the trust.
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As described in each Declaration, the property trustee may hold a meeting to
have preferred securities holders vote on a change or have them approve the
change by written consent.
If a vote of preferred securities holders is taken or a consent is obtained,
any preferred securities that are owned by Sempra Energy or any of its
affiliates will, for purposes of the vote or consent, be treated as if they
were not outstanding. This means:
(a) Sempra Energy and any of its affiliates will not be able to vote on or
consent to matters requiring the vote or consent of holders of
preferred securities; and
(b) any preferred securities owned by Sempra Energy or any of its
affiliates will not be counted in determining whether the required
percentage of votes or consents has been obtained.
Removal and Replacement of Trustees
Only the holder of a trust's common securities has the right to remove, or
replace the regular trustees and, prior to an event of default, property and
Delaware trustees of the trust. If an event of default occurs, only the holders
of a trust's preferred securities have the right to remove or replace the
property and Delaware trustees. The resignation or removal of any trustee and
the appointment of a successor trustee shall be effective only on the
acceptance of appointment by the successor trustee in accordance with the
provisions of the Declaration for the trust.
Information Concerning the Property Trustees
For matters relating to compliance with the Trust Indenture Act, the property
trustee of each trust will have all of the duties and responsibilities of an
indenture trustee under the Trust Indenture Act. Each property trustee, other
than during the occurrence and continuance of a Declaration event of default
under the applicable trust, undertakes to perform only the duties as are
specifically set forth in the applicable Declaration and, upon a Declaration
event of default, must use the same degree of care and skill as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, a property trustee is under no obligation to exercise any of
the powers given it by the applicable Declaration at the request of any holder
of preferred securities unless it is offered reasonable security or indemnity
against the costs, expenses and liabilities that it might incur. However, the
holders of the preferred securities will not be required to offer an indemnity
where the holders, by exercising their voting rights, direct the property
trustee to take any action following a Declaration event of default.
Miscellaneous
The regular trustees of each trust are authorized and directed to conduct the
affairs of and to operate the trust in such a way that:
(a) it will not be deemed to be an "investment company" required to be
registered under the Investment Company Act;
(b) it will be classified as a grantor trust for United States federal
income tax purposes; and
(c) the subordinated debt securities held by it will be treated as
indebtedness of Sempra Energy for United States federal income tax
purposes.
Sempra Energy and the regular trustees of a trust are authorized to take any
action (so long as it is consistent with applicable law or the applicable
certificate of trust or Declaration) that Sempra Energy and the regular
trustees of the trust determine to be necessary or desirable for such purposes.
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Registered holders of preferred securities have no preemptive or similar
rights.
A trust may not borrow money, issue debt, execute mortgages or pledge any of
its assets.
Governing Law
Each Declaration and the related preferred securities will be governed by and
construed in accordance with the laws of the State of Delaware.
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DESCRIPTION OF PREFERRED SECURITIES GUARANTEES
General
Sempra Energy will execute a preferred securities guarantee, which benefits
the holders of preferred securities, at the time that a trust issues those
preferred securities. Each preferred securities guarantee will be qualified as
an indenture under the Trust Indenture Act. The Bank of New York will act as
indenture trustee ("preferred securities guarantee trustee") under each
preferred securities guarantee for the purposes of compliance with the Trust
Indenture Act.
The preferred securities guarantee trustee will hold each preferred
securities guarantee for the benefit of the preferred securities holders of the
applicable trust.
Sempra Energy will irrevocably agree, as described in each preferred
securities guarantee, to pay in full, to the holders of the preferred
securities issued by the applicable trust, the preferred securities guarantee
payments (as defined below) (except to the extent previously paid), when and as
due, regardless of any defense, right of set-off or counterclaim which the
trust may have or assert. The following payments, to the extent not paid by a
trust ("preferred securities guarantee payments"), will be covered by the
applicable preferred securities guarantee:
(a) any accrued and unpaid distributions required to be paid on the
applicable preferred securities, to the extent that the trust has funds
available to make the payment;
(b) the redemption price, to the extent that the trust has funds
available to make the payment; and
(c) upon a voluntary or involuntary dissolution and liquidation of the
trust (other than in connection with a distribution of subordinated debt
securities to holders of the preferred securities or the redemption of all
the preferred securities), the lesser of:
(1) the aggregate of the liquidation amount specified in the
prospectus supplement for each preferred security plus all accrued and
unpaid distributions on the preferred security to the date of payment,
to the extent the trust has funds available to make the payment; and
(2) the amount of assets of the trust remaining available for
distribution to holders of its preferred securities upon a dissolution
and liquidation of the trust.
Sempra Energy's obligation to make a preferred securities guarantee payment
may be satisfied by directly paying the required amounts to the holders of the
preferred securities or by causing the trust to pay the amounts to the holders.
No single document executed by Sempra Energy relating to the issuance of
preferred securities will provide for its full, irrevocable and unconditional
guarantee of the preferred securities. It is only the combined operation of
Sempra Energy's obligations under the subordinated indenture, the subordinated
debt securities and the applicable preferred securities guarantee and
Declaration that has the effect of providing a full, irrevocable and
unconditional guarantee of a trust's obligations under its preferred
securities.
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Status of the Preferred Securities Guarantees
Each preferred securities guarantee will constitute an unsecured obligation
of Sempra Energy and will rank:
(a) subordinate and junior in right of payment to all of Sempra Energy's
other liabilities (except any guarantee now or hereafter issued by Sempra
Energy in respect of any preferred or preference stock of any of its
affiliates);
(b) equal with any guarantee now or hereafter issued by Sempra Energy in
respect of the most senior preferred or preference stock now or hereafter
issued by Sempra Energy, and with any guarantee now or hereafter issued by
it in respect of any preferred or preference stock of any of its
affiliates; and
(c) senior to Sempra Energy's common stock.
Each Declaration will require that the holder of preferred securities accept
the subordination provisions and other terms of the preferred securities
guarantee. Each preferred securities guarantee will constitute a guarantee of
payment and not of collection (in other words the holder of the guaranteed
security may sue Sempra Energy, or seek other remedies, to enforce its rights
under the preferred securities guarantee without first suing any other person
or entity). A preferred securities guarantee will not be discharged except by
payment of the preferred securities guarantee payments in full to the extent
not previously paid or upon distribution to the applicable preferred securities
holders of the corresponding series of subordinated debt securities pursuant to
the appropriate Declaration.
Amendments and Assignment
Except with respect to any changes which do not adversely affect the rights
of holders of a series of preferred securities in any material respect (in
which case no consent of the holders will be required), a preferred securities
guarantee may be amended only with the prior approval of the holders of at
least a majority in aggregate liquidation amount of the preferred securities
(excluding any the preferred securities held by Sempra Energy or any of its
affiliates). A description of the way to obtain any approval is described under
"Description of the Preferred Securities--Voting Rights; Amendment of
Declarations." All guarantees and agreements contained in a preferred
securities guarantee will be binding on Sempra Energy's successors, assigns,
receivers, trustees and representatives and are for the benefit of the holders
of the applicable preferred securities.
Preferred Securities Guarantee Events of Default
An event of default under a preferred securities guarantee occurs if Sempra
Energy fails to make any of its required payments or perform its obligations
under the preferred securities guarantee.
The holders of at least a majority in aggregate liquidation amount of the
preferred securities relating to each preferred securities guarantee (excluding
any preferred securities held by Sempra Energy or any of its affiliates) will
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the preferred securities guarantee
trustee relating to the preferred securities guarantee or to direct the
exercise of any trust or power given to the preferred securities guarantee
trustee under the preferred securities guarantee.
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Information Concerning the Preferred Securities Guarantee Trustees
The preferred securities guarantee trustee under a preferred securities
guarantee, other than during the occurrence and continuance of a default under
the preferred securities guarantee, will perform only the duties that are
specifically described in the preferred securities guarantee. After such a
default, the preferred securities guarantee trustee will exercise the same
degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, a preferred
securities guarantee trustee is under no obligation to exercise any of its
powers as described in the applicable preferred securities guarantee at the
request of any holder of covered preferred securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that it might
incur.
Termination of the Preferred Securities Guarantees
Each preferred securities guarantee will terminate once the applicable
preferred securities are paid in full or upon distribution of the corresponding
series of subordinated debt securities to the holders of the preferred
securities. Each preferred securities guarantee will continue to be effective
or will be reinstated if at any time any holder of preferred securities issued
by the applicable trust must restore payment of any sums paid under the
preferred securities or the preferred securities guarantee.
Governing Law
The preferred securities guarantees will be governed by and construed in
accordance with the laws of the State of New York.
Relationship Among Preferred Securities, Preferred Securities Guarantees and
Subordinated Debt Securities Held By Each Trust
Payments of distributions and redemption and liquidation payments due on each
series of preferred securities (to the extent the applicable trust has funds
available for the payments) will be guaranteed by Sempra Energy to the extent
described under "Description of the Preferred Securities Guarantees." No single
document executed by Sempra Energy in connection with the issuance of any
series of preferred securities will provide for its full, irrevocable and
unconditional guarantee of the preferred securities. It is only the combined
operation of Sempra Energy's obligations under the applicable preferred
securities guarantee, Declaration, subordinated indenture and subordinated debt
securities that has the effect of providing a full, irrevocable and
unconditional guarantee of a trust's obligations under its preferred
securities.
As long as Sempra Energy makes payments of interest and other payments when
due on the subordinated debt securities held by a trust, the payments will be
sufficient to cover the payment of distributions and redemption and liquidation
payments due on the preferred securities issued by that trust, primarily
because:
(a) the aggregate principal amount of the subordinated debt securities
will be equal to the sum of the aggregate liquidation amount of the
preferred and common securities;
(b) the interest rate and interest and other payment dates on the
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the preferred securities;
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(c) Sempra Energy shall pay for any and all costs, expenses and
liabilities of each trust except the trust's obligations under its
preferred securities (and Sempra Energy has agreed to guarantee such
payment); and
(d) each Declaration provides that the related trust will not engage in
any activity that is not consistent with the limited purposes of the trust.
If and to the extent that Sempra Energy does not make payments on the
subordinated debt securities, the trust will not have funds available to make
payments of distributions or other amounts due on its preferred securities. In
those circumstances, you will not be able to rely upon the preferred securities
guarantee for payment of these amounts. Instead, you may directly sue Sempra
Energy or seek other remedies to collect your pro rata share of payments owed.
If you sue Sempra Energy to collect payment, then Sempra Energy will assume
your rights as a holder of preferred securities under the trust's Declaration
to the extent Sempra Energy makes a payment to you in any legal action.
A holder of any preferred security may sue Sempra Energy, or seek other
remedies, to enforce its rights under the applicable preferred securities
guarantee without first suing the applicable preferred securities guarantee
trustee, the trust which issued the preferred security or any other person or
entity.
EXPERTS
The consolidated financial statements, the related financial statement
schedule and the supplemental schedule of summarized financial information as
of December 31, 1998 and 1997 and for each of the three years in the period
ended December 31, 1998 incorporated by reference in this prospectus have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
reports, which are incorporated by reference herein, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
VALIDITY OF THE SECURITIES AND THE GUARANTEES
John R. Light, Esq., Executive Vice President and General Counsel of Sempra
Energy will pass upon the validity of the securities and the guarantees.
Richards, Layton & Finger, P.A., special Delaware counsel to Sempra Energy and
the trusts, will pass upon certain matters of Delaware law relating to the
validity of the preferred securities. Latham & Watkins, Los Angeles, will pass
upon the validity of the securities and the guarantees for any underwriters or
agents.
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus from time to time in
one or more transactions
(a) to purchasers directly;
(b) to underwriters for public offering and sale by them;
(c) through agents;
(d) through dealers; or
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(e) through a combination of any of the foregoing methods of sale.
We may distribute the securities from time to time in one or more
transactions at:
(a) a fixed price or prices, which may be changed;
(b) market prices prevailing at the time of sale;
(c) prices related to such prevailing market prices; or
(d) negotiated prices.
Direct Sales
We may sell the securities directly to institutional investors or others who
may be deemed to be underwriters within the meaning of the Securities Act with
respect to any resale of the securities. A prospectus supplement will describe
the terms of any sale of securities we are offering hereunder.
To Underwriters
The applicable prospectus supplement will name any underwriter involved in a
sale of securities. Underwriters may offer and sell securities at a fixed price
or prices, which may be changed, or from time to time at market prices or at
negotiated prices. Underwriters may be deemed to have received compensation
from us from sales of securities in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of securities for
whom they may act as agent. Credit Suisse First Boston Corporation, Goldman,
Sachs & Co., Merrill Lynch & Co., Morgan Stanley Dean Witter and Salomon Smith
Barney Inc. may be involved in any at the market offering of equity securities
by or on our behalf.
Underwriters may sell securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions (which may be changed from time to time)
from the purchasers for whom they may act as agent.
Unless otherwise provided in a prospectus supplement, the obligations of any
underwriters to purchase securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all the
securities if any are purchased.
Through Agents and Dealers
We will name any agent involved in a sale of securities, as well as any
commissions payable by us to such agent, in a prospectus supplement. Unless we
indicate differently in the prospectus supplement, any such agent will be
acting on a reasonable efforts basis for the period of its appointment.
If we utilize a dealer in the sale of the securities being offered pursuant
to their prospectus, we will sell the securities to the dealer, as principal.
The dealer may then resell the securities to the public at varying prices to be
determined by the dealer at the time of resale.
34
<PAGE>
Delayed Delivery Contracts
If we so specify in the applicable prospectus supplement, we will authorize
underwriters, dealers and agents to solicit offers by certain institutions to
purchase the securities pursuant to contracts providing for payment and
delivery on future dates. Such contracts will be subject to only those
conditions set forth in the applicable Prospectus Supplement.
The underwriters, dealers and agents will not be responsible for the validity
or performance of the contracts. We will set forth in the prospectus supplement
relating to the contracts the price to be paid for the securities, the
commissions payable for solicitation of the contracts and the date in the
future for delivery of the securities.
General Information
Underwriters, dealers and agents participating in a sale of the securities
may be deemed to be underwriters as defined in the Securities Act, and any
discounts and commissions received by them and any profit realized by them on
resale of the securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. We may have agreements with
underwriters, dealers and agents to indemnify them against certain civil
liabilities, including liabilities under the Securities Act, and to reimburse
them for certain expenses.
Underwriters or agents and their associates may be customers of, engage in
transactions with or perform services for us or our affiliates in the ordinary
course of business.
Unless we indicate differently in a prospectus supplement, we will not list
the securities on any securities exchange. The securities will be a new issue
of securities with no established trading market. Any underwriters that
purchase securities for public offering and sale may make a market in such
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. We make no assurance
as to the liquidity of or the trading markets for any securities.
35
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.............. $ 295,000
Printing expenses................................................ $ 150,000
Trustee fees and expenses........................................ $ 75,000
Legal fees and expenses.......................................... $ 100,000
Accounting fees and expenses..................................... $ 250,000
Blue Sky fees and expenses....................................... $ 10,000
Rating Agency fees............................................... $ 250,000
Miscellaneous.................................................... $ 3,000
----------
Total.......................................................... $1,133,000
==========
</TABLE>
All of the above except the Securities and Exchange Commission registration
fee are estimated.
Item 15. Indemnification of Officers and Directors.
Section 317 of the Corporations Code of the State of California permits a
corporation to provide indemnification to its directors and officers under
certain circumstances. The Sempra Energy Amended and Restated Articles of
Incorporation and the Amended and Restated Bylaws eliminate the liability of
directors for monetary damages to the fullest extent permissible under
California law and provide that indemnification for liability for monetary
damages incurred by directors, officers and other agents of Sempra Energy shall
be allowed, subject to certain limitations, in excess of the indemnification
otherwise permissible under California law. In addition, Sempra Energy and
Sempra Energy Holdings have indemnification agreements with each of their
officers and directors that provide for indemnification for monetary damages to
the fullest extent permissible under California law. Sempra Energy and Sempra
Energy Holdings maintain liability insurance and are also insured against loss
for which they may be required or permitted by law to indemnify their directors
and officers for their related acts.
The directors and officers of Sempra Energy and Sempra Energy Holdings are
covered by insurance policies indemnifying them against certain liabilities,
including certain liabilities arising under the Securities Act, which might be
incurred by them in such capacities and against which they cannot be
indemnified by Sempra Energy or Sempra Energy Holdings.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been informed that in
the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits.
<TABLE>
<C> <S>
1.1 Underwriting Agreement (Preferred Securities).*
1.2 Underwriting Agreement (Debt Securities--Sempra Energy).*
1.3 Underwriting Agreement (Debt Securities--Sempra Energy Holdings).*
1.4 Underwriting Agreement (Common Stock).*
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
1.5 Underwriting Agreement (Preferred Stock).*
3.1 Amended and Restated Articles of Incorporation of Sempra Energy
(Incorporated by reference from the Registration Statement on Form S-3
File No. 333-51309 dated April 29, 1998 (Exhibit 3.1)).
3.2 Amended and Restated Bylaws of Sempra Energy effective May 26, 1998
(Incorporated by reference from the Registration Statement on Form S-8
File No. 333-56161 dated June 5, 1998 (Exhibit 3.2)).
3.3 Articles of Incorporation of Sempra Energy Holdings.
3.4 Bylaws of Sempra Energy Holdings.
3.5 Certificate of Trust of Sempra Energy Capital Trust I.
3.6 Certificate of Trust of Sempra Energy Capital Trust II.
3.7 Certificate of Trust of Sempra Energy Capital Trust III.
4.1 Form of Indenture for Senior Debt Securities (Sempra Energy).
4.2 Form of Indenture for Subordinated Debt Securities (Sempra Energy).
4.3 Form of Indenture for Senior Debt Securities (Sempra Energy Holdings).
4.4 Form of Senior Note--Sempra Energy (included in Exhibit 4.1).
4.5 Form of Subordinated Note--Sempra Energy (included in Exhibit 4.2).
4.6 Form of Senior Note--Sempra Energy Holdings (included in Exhibit 4.3).
4.7 Form of Preferred Security (included in Exhibit 4.12).
4.8 Form of Preferred Security Guarantee.
4.9 Declaration of Trust of Sempra Energy Capital Trust I.
4.10 Declaration of Trust of Sempra Energy Capital Trust II.
4.11 Declaration of Trust of Sempra Energy Capital Trust III.
4.12 Form of Amended and Restated Declaration of Trust for each of Sempra
Energy Capital Trust I, Sempra Energy Capital Trust II and Sempra
Energy Capital Trust III.
4.13 Rights Agreement dated May 26, 1998 between Sempra Energy and First
Chicago Trust Company of New York, as rights agent (Incorporated by
reference from the Registration Statement on Form 8-A File No. 001-
14201 filed June 5, 1998 (Exhibit 1)).
5.1 Opinion of John R. Light, Esq.
5.2 Opinion of Richards, Layton & Finger, P.A. relating to Sempra Energy
Capital Trust I.
5.3 Opinion of Richards, Layton & Finger, P.A. relating to Sempra Energy
Capital Trust II.
5.4 Opinion of Richards, Layton & Finger, P.A. relating to Sempra Energy
Capital Trust III.
12.1 Statement regarding the computation of ratio of earnings to combined
fixed charges and preferred stock dividends for the years ended
December 31, 1998, 1997, 1996, 1995 and 1994.
23.1 Consent of John R. Light, Esq. (included in Exhibit 5.1).
23.2 Consents of Richards, Layton & Finger, P.A. (included in Exhibits 5.2,
5.3 and 5.4).
23.3 Independent Auditors' Consent (Deloitte & Touche LLP).
24.1 Powers of Attorney (included on pages II-5, 7, 8 and 9).
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of Citibank, N.A., as Trustee under the Indenture
(Senior Debt Securities--Sempra Energy).
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under the
Indenture (Subordinated Debt Securities--Sempra Energy).
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of U.S. Bank Trust Company, as Trustee under the Indenture (Senior
Debt Securities--Sempra Energy Holdings).
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Property Trustee--Sempra Energy Capital
Trust I.
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Property Trustee--Sempra Energy Capital
Trust II.
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Property Trustee--Sempra Energy Capital
Trust III.
25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Preferred Securities Guarantee Trustee--
Sempra Energy Capital Trust I.
25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Preferred Securities Guarantee Trustee--
Sempra Energy Capital Trust II.
25.9 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Preferred Securities Guarantee Trustee--
Sempra Energy Capital Trust III.
25.10 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Debt Securities Guarantee Trustee--Sempra
Energy Holdings.
</TABLE>
- --------
*To be filed by amendment or incorporated by reference in connection with the
offering of the securities.
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective dated of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that (i) and (ii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Securities and Exchange
Commission by the registrants pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
II-3
<PAGE>
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act,
each filing of Sempra Energy's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) To file an application for the purpose of determining the eligibility of
the trustees to act under subsection (a) of Section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the Securities
and Exchange Commission under Section 305(b)(2) of the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described under Item 15 above, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by a registrant of expenses incurred or paid by a director, officer
or controlling person in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, such registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Sempra Energy certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, and State of California, on the 5th
day of May, 1999.
SEMPRA ENERGY
/s/ Richard D. Farman
By __________________________________
Richard D. Farman
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears below
hereby appoints Richard D. Farman, Stephen L. Baum, John R. Light and Neal E.
Schmale, and each of them severally, as his true and lawful attorney-in-fact
and agent to sign in his name and behalf, in any and all capacities stated
below, and to file with the Securities and Exchange Commission, any and all
amendments, including post-effective amendments and any registration statement
for the same offering that is to be effective under Rule 462(b) of the
Securities Act, to this registration statement, and the registrant hereby also
appoints each such person as its attorney-in-fact and agent with like authority
to sign and file any such amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 5th day of May, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Richard D. Farman Principal Executive Officer; Chairman,
___________________________________________ Chief Executive Officer and Director
Richard D. Farman
/s/ Stephen L. Baum Vice Chairman, President, Chief Operating
___________________________________________ Office and Director
Stephen L. Baum
/s/ Neal E. Schmale Principal Financial Officer; Executive Vice
___________________________________________ President, Chief Financial Officer
Neal E. Schmale
/s/ Frank H. Ault Principal Accounting Officer; Vice
___________________________________________ President, Controller
Frank H. Ault
/s/ Hyla H. Bertea Director
___________________________________________
Hyla H. Bertea
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Ann L. Burr Director
___________________________________________
Ann L. Burr
/s/ Herbert L. Carter Director
___________________________________________
Herbert L. Carter
/s/ Richard A. Collato Director
___________________________________________
Richard A. Collato
/s/ Daniel W. Derbes Director
___________________________________________
Daniel W. Derbes
/s/ Wilford D. Godbold, Jr. Director
___________________________________________
Wilford D. Godbold, Jr.
/s/ Robert H. Goldsmith Director
___________________________________________
Robert H. Goldsmith
/s/ William D. Jones Director
___________________________________________
William D. Jones
/s/ Ignacio E. Lozano, Jr. Director
___________________________________________
Ignacio E. Lozano, Jr.
/s/ Ralph R. Ocampo Director
___________________________________________
Ralph R. Ocampo
/s/ William G. Ouchi Director
___________________________________________
William G. Ouchi
/s/ Richard J. Stegemeier Director
___________________________________________
Richard J. Stegemeier
/s/ Thomas C. Stickel Director
___________________________________________
Thomas C. Stickel
/s/ Diana L. Walker Director
___________________________________________
Diana L. Walker
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, and State of California, on the 5th
day of May, 1999.
SEMPRA ENERGY HOLDINGS
/s/ Richard D. Farman
By __________________________________
Richard D. Farman
Chairman
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears below
hereby appoints Richard D. Farman, Stephen L. Baum, John R. Light and Neal E.
Schmale, and each of them severally, as his true and lawful attorney-in-fact
and agent to sign in his name and behalf, in any and all capacities stated
below, and to file with the Securities and Exchange Commission, any and all
amendments, including post-effective amendments and any registration statement
for the same offering that is to be effective under Rule 462(b) of the
Securities Act, to this registration statement, and the registrant hereby also
appoints each such person as its attorney-in-fact and agent with like authority
to sign and file any such amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 5th day of May, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Richard D. Farman Principal Executive Officer;
____________________________________ Chairman and Director
Richard D. Farman
/s/ Donald E. Felsinger President and Director
____________________________________
Donald E. Felsinger
/s/ Neal E. Schmale Principal Financial and
____________________________________ Accounting Officer; Vice
Neal E. Schmale President, Chief Financial
Officer and Controller
/s/ Stephen L. Baum Director
____________________________________
Stephen L. Baum
</TABLE>
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, and State of California, on the 5th
day of May, 1999.
SEMPRA ENERGY CAPITAL TRUST I
/s/ Neal E. Schmale
By __________________________________
Neal E. Schmale
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Richard D. Farman,
Stephen L. Baum, John R. Light and Neal E. Schmale, and each of them severally,
as his true and lawful attorney-in-fact and agent to sign in his name and
behalf, in any and all capacities stated below, and to file with the Securities
and Exchange Commission, any and all amendments and any registration statement
for the same offering that is to be effective under Rule 462(b) of the
Securities Act, including post-effective amendments, to this registration
statement, and the registrant hereby also appoints each such person as its
attorney-in-fact and agent with like authority to sign and file any such
amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 5th day of May, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C> <C>
/s/ Neal E. Schmale Regular Trustee
____________________________________
Neal E. Schmale
/s/ Frank H. Ault Regular Trustee
____________________________________
Frank H. Ault
/s/ Charles A. McMonagle Regular Trustee
____________________________________
Charles A. McMonagle
</TABLE>
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, and State of California, on the 5th
day of May, 1999.
SEMPRA ENERGY CAPITAL TRUST II
By /s/ Neal E. Schmale
---------------------------------
Neal E. Schmale
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Richard D. Farman,
Stephen L. Baum, John R. Light and Neal E. Schmale, and each of them severally,
as his true and lawful attorney-in-fact and agent to sign in his name and
behalf, in any and all capacities stated below, and to file with the Securities
and Exchange Commission, any and all amendments and any registration statement
for the same offering that is to be effective under Rule 462(b) of the
Securities Act, including post-effective amendments, to this registration
statement, and the registrant hereby also appoints each such person as its
attorney-in-fact and agent with like authority to sign and file any such
amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 5th day of May, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C> <C>
/s/ Neal E. Schmale Regular Trustee
- ----------------------------------
Neal E. Schmale
/s/ Frank H. Ault Regular Trustee
- ----------------------------------
Frank H. Ault
/s/ Charles A. McMonagle Regular Trustee
- ----------------------------------
Charles A. McMonagle
</TABLE>
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, and State of California, on the 5th
day of May, 1999.
SEMPRA ENERGY CAPITAL TRUST III
/s/ Neal E. Schmale
By __________________________________
Neal E. Schmale
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Richard D. Farman,
Stephen L. Baum, John R. Light and Neal E. Schmale, and each of them severally,
as his true and lawful attorney-in-fact and agent to sign in his name and
behalf, in any and all capacities stated below, and to file with the Securities
and Exchange Commission, any and all amendments and any registration statement
for the same offering that is to be effective under Rule 462(b) of the
Securities Act, including post-effective amendments, to this registration
statement, and the registrant hereby also appoints each such person as its
attorney-in-fact and agent with like authority to sign and file any such
amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 5th day of May, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C> <C>
/s/ Neal E. Schmale Regular Trustee
____________________________________
Neal E. Schmale
/s/ Frank H. Ault Regular Trustee
____________________________________
Frank H. Ault
/s/ Charles A. McMonagle Regular Trustee
____________________________________
Charles A. McMonagle
</TABLE>
II-10
<PAGE>
SEMPRA ENERGY
SEMPRA ENERGY HOLDINGS
SEMPRA ENERGY CAPITAL TRUST I
SEMPRA ENERGY CAPITAL TRUST II
SEMPRA ENERGY CAPITAL TRUST III
REGISTRATION STATEMENT ON FORM S-3
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
1.1 Underwriting Agreement (Preferred Securities).*
1.2 Underwriting Agreement (Debt Securities--Sempra Energy).*
1.3 Underwriting Agreement (Debt Securities--Sempra Energy Holdings).*
1.4 Underwriting Agreement (Common Stock).*
1.5 Underwriting Agreement (Preferred Stock).*
3.1 Amended and Restated Articles of Incorporation of Sempra Energy
(Incorporated by reference from the Registration Statement on Form S-3
File No. 333-51309 dated April 29, 1998 (Exhibit 3.1)).
3.2 Amended and Restated Bylaws of Sempra Energy effective May 26, 1998
(Incorporated by reference from the Registration Statement on Form S-8
File No. 333-56161 dated June 5, 1998 (Exhibit 3.2)).
3.3 Articles of Incorporation of Sempra Energy Holdings.
3.4 Bylaws of Sempra Energy Holdings.
3.5 Certificate of Trust of Sempra Energy Capital Trust I.
3.6 Certificate of Trust of Sempra Energy Capital Trust II.
3.7 Certificate of Trust of Sempra Energy Capital Trust III.
4.1 Form of Indenture for Senior Debt Securities (Sempra Energy).
4.2 Form of Indenture for Subordinated Debt Securities (Sempra Energy).
4.3 Form of Indenture for Senior Debt Securities (Sempra Energy Holdings).
4.4 Form of Senior Note--Sempra Energy (included in Exhibit 4.1).
4.5 Form of Subordinated Note--Sempra Energy (included in Exhibit 4.2).
4.6 Form of Senior Note--Sempra Energy Holdings (included in Exhibit 4.3).
4.7 Form of Preferred Security (included in Exhibit 4.12).
4.8 Form of Preferred Security Guarantee.
4.9 Declaration of Trust of Sempra Energy Capital Trust I.
4.10 Declaration of Trust of Sempra Energy Capital Trust II.
4.11 Declaration of Trust of Sempra Energy Capital Trust III.
4.12 Form of Amended and Restated Declaration of Trust for each of Sempra
Energy Capital Trust I, Sempra Energy Capital Trust II and Sempra
Energy Capital Trust III.
4.13 Rights Agreement dated May 26, 1998 between Sempra Energy and First
Chicago Trust Company of New York, as rights agent (Incorporated by
reference from the Registration Statement on Form 8-A File No. 001-
14201 filed June 5, 1998 (Exhibit 1)).
5.1 Opinion of John R. Light, Esq.
5.2 Opinion of Richards, Layton & Finger, P.A. relating to Sempra Energy
Capital Trust I.
5.3 Opinion of Richards, Layton & Finger, P.A. relating to Sempra Energy
Capital Trust II.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
5.4 Opinion of Richards, Layton & Finger, P.A. relating to Sempra Energy
Capital Trust III.
12.1 Statement regarding the computation of ratio of earnings to combined
fixed charges and preferred stock dividends for the years ended
December 31, 1998, 1997, 1996, 1995 and 1994.
23.1 Consent of John R. Light, Esq. (included in Exhibit 5.1).
23.2 Consents of Richards, Layton & Finger, P.A. (included in Exhibits 5.2,
5.3 and 5.4).
23.3 Independent Auditors' Consent (Deloitte & Touche LLP).
24.1 Powers of Attorney (included on pages II-5, 7, 8 and 9).
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of Citibank, N.A., as Trustee under the Indenture
(Senior Debt Securities--Sempra Energy).
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Trustee under the
Indenture (Subordinated Debt Securities--Sempra Energy).
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of U.S. Bank Trust Company, as Trustee under the
Indenture (Senior Debt Securities--Sempra Energy Holdings).
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Property Trustee--Sempra
Energy Capital Trust I.
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Property Trustee--Sempra
Energy Capital Trust II.
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Property Trustee--Sempra
Energy Capital Trust III.
25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Preferred Securities
Guarantee Trustee--Sempra Energy Capital Trust I.
25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Preferred Securities
Guarantee Trustee--Sempra Energy Capital Trust II.
25.9 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Preferred Securities
Guarantee Trustee--Sempra Energy Capital Trust III.
25.10 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Bank of New York, as Debt Securities
Guarantee Trustee--Sempra Energy Holdings
</TABLE>
- --------
*To be filed by amendment.
<PAGE>
Exhibit 3.3
ARTICLES OF INCORPORATION
OF
WINE ACQUISITION INC.
ARTICLE I.
NAME AND AGENT
The name of the corporation is Wine Acquisition Inc. (the
"Corporation"). The name in this State of the Corporation's initial agent for
service of process is CT Corporation System.
ARTICLE II.
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of the State of California (the "General Corporation Law"), other than the
banking business, the trust company business or the practice of a profession
permitted to be incorporated by the California Corporations Code.
ARTICLE III.
CAPITAL STOCK
1. The total number of shares of all classes of stock that the
Corporation shall be authorized to issue is 1,000, all of which shall be shares
of common stock, $.01 par value ("Common Stock").
ARTICLE IV.
DIRECTORS
1. The exact number of directors comprising the entire Board shall
be fixed from time to time by a bylaw or amendment thereof duly adopted by the
Board or approved by not less than two-thirds of the outstanding shares.
2. The Board of Directors shall be divided into three classes,
designated Class I, Class II and Class III, as nearly equal in number as
possible, and the term of office of directors of one class shall expire at each
annual meeting of shareholders, but in all cases continue as to each director
until his or her successor shall be elected and shall qualify or until his or
her earlier resignation, removal from office, death or incapacity. Additional
directorships resulting from an increase in number of directors shall be
apportioned among the classes as equally as possible. The initial terms of
office shall be determined by resolution duly adopted by
<PAGE>
the Board. At each annual meeting of shareholders the number of directors equal
to the number of directors of the class whose term expires at the time of such
meeting (or, if fewer, the number of directors properly nominated and qualified
for election) shall be elected to hold office until the third succeeding annual
meeting of shareholders after their election. This paragraph 2 of this Article
IV shall become effective only when the Corporation becomes a "listed
corporation" within the meaning of (S) 301.5 of the General Corporation Law and
where the number of directors is no less than nine.
ARTICLE V.
CUMULATIVE VOTING
No shareholder may cumulate votes in the election of directors. This
Article V shall become effective only when the Corporation becomes a "listed
corporation" within the meaning of (S) 301.5 of the General Corporation Law.
ARTICLE VI.
ACTION BY SHAREHOLDERS
Unless the Board of Directors, by a resolution adopted by two-thirds
of the authorized number of directors, waives the provisions of this Article VI
in any particular circumstance, any action required or permitted to be taken by
shareholders of the Corporation must be taken either (i) at a duly called annual
or special meeting of shareholders of the Corporation or (ii) by the unanimous
written consent of all of the shareholders.
ARTICLE VII.
LIABILITY OF DIRECTORS FOR MONETARY DAMAGES; INDEMNIFICATION OF
AND INSURANCE FOR CORPORATE AGENTS
1. The liability of the directors of the Corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law.
2. The Corporation shall have the power, by bylaw, agreement or
otherwise, to provide indemnification of agents (as defined in (S) 317 of the
General Corporation Law) of the corporation to the fullest extent permissible
under California law and in excess of that expressly permitted under (S) 317 of
the General Corporation Law, subject to the limits on such excess
indemnification set forth in (S) 204 of the General Corporation Law.
3. The Corporation shall have the power to purchase and maintain
insurance on behalf of any agent (as defined in (S) 317 of the General
Corporation Law) of the corporation against any liability asserted against or
incurred by the agent in that capacity or arising out of the agent's status as
such to the fullest extent permissible under California law and whether or not
the corporation would have the power to indemnify the agent under (S) 317 of the
General Corporation Law or these articles of incorporation.
<PAGE>
ARTICLE VIII.
BY-LAWS
The Board of Directors is expressly authorized to make, amend or
repeal the bylaws of the Corporation, without any action on the part of the
shareholders, solely by the affirmative vote of at least two-thirds of the
authorized number of directors. The bylaws may also be amended or repealed by
the shareholders, but only by the affirmative vote of the holders of shares
representing at least two-thirds of the outstanding shares of the Corporation
entitled to vote.
ARTICLE IX.
AMENDMENT
The amendment or repeal of Articles IV, V, VI, VII, VIII and IX shall
require the approval of not less than two-thirds of the outstanding shares.
IN WITNESS WHEREOF, these Articles of Incorporation have been signed
as of August, 1, 1997.
/s/ Phillip J. Susser
---------------------
Phillip J. Susser
Incorporator
<PAGE>
CERTIFICATE OF AMENDMENT TO THE
ARTICLES OF INCORPORATION OF
WINE ACQUISITION INC.
Donald E. Felsinger and Kevin C. Sagara hereby certify that:
1. The name of the Corporation is Wine Acquisition Inc. The date of
filing of its Articles of Incorporation with the Secretary of State of the State
of California was August 1, 1997.
2. They are the President and the Secretary, respectively, of the
Corporation.
3. This Certificate of Amendment sets forth an amendment to the
Articles of Incorporation of the Corporation which was duly adopted by the Board
of Directors of the Corporation by written consent and was duly adopted by the
written consent of the holders of a majority of the outstanding shares of the
Corporation entitled to vote thereon in accordance with the provisions of
Sections 902 and 603 of the General Corporation Law of the State of California.
The total number of outstanding shares is 1000. The percentage vote required
was more than 50%.
4. Article I of the Articles of Incorporation is hereby amended in
full to be and read as follows:
"ARTICLE I.
NAME AND AGENT
The name of the corporation is Sempra Holdings Inc. (the
"Corporation"). The name in this State of the Corporation's initial agent for
service of process is CT Corporation System."
We the undersigned further declare under penalty of perjury under the
laws of the State of California that the matters are set forth in this
certificate are true and correct of our own knowledge.
<PAGE>
Executed this 6th day of March, 1998.
---
By: /s/ Donald E. Felsinger
-----------------------------------
Donald E. Felsinger
President and Chief Executive Officer
By: /s/ Kevin C. Sagara
-----------------------------------
Kevin C. Sagara
Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
SEMPRA HOLDINGS INC.
The undersigned certify that:
1. They are the President and the Secretary, respectively, of Sempra
Holdings Inc., a California corporation.
2. Article I of the Articles of Incorporation is amended to read in
its entirety as follows:
"ARTICLE I
NAME
The name of the corporation is: Sempra Energy Holdings."
3. The foregoing amendment of Articles of Incorporation has been duly
approved by the Board of Directors.
4. The foregoing amendment of Articles of Incorporation has been duly
approved by the required vote of shareholders in accordance with Section 902 of
the California Corporations Code. The total number of outstanding shares of the
corporation is 1000. The number of shares voting in favor of the amendment
equaled or exceeded the vote required. The percentage vote was more than 50%.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Date: April 12, 1999
By: /s/ Donald E. Felsinger
-----------------------
Donald E. Felsinger
President
By: /s/ Thomas C. Sanger
-----------------------
Thomas C. Sanger
Secretary
<PAGE>
Exhibit 3.4
BYLAWS
OF
WINE ACQUISITION INC.
ARTICLE I.
CORPORATE MANAGEMENT
The business and affairs of Wine Acquisition Inc. (the "Corporation")
shall be managed, and all corporate powers shall be exercised, by or under the
direction of the board of directors of the Corporation (the "Board"), subject to
the articles of incorporation and the General Corporation Law of the State of
California (the "General Corporation Law").
ARTICLE II.
OFFICERS
1. Designation. The officers of the Corporation shall consist of a
----
Chairman of the Board (the "Chairman") or a President, or both, a Secretary, and
a Chief Financial Officer and, if the Board of Directors from time to time so
elects, any of the following: a Vice Chairman of the Board (the "Vice
Chairman"), a Chief Executive Officer, a Chief Operating Officer, one or more
Vice Presidents, one or more Assistant Secretaries, a Treasurer, one or more
Assistant Treasurers, a Controller, one or more Assistant Controllers, and such
other officers as the Board may from time to time elect. Any two or more of
such offices may be held by the same person.
2. Term. The officers shall be elected by the Board as soon as
possible after the Annual Meeting of the Shareholders, and shall hold office for
one year or until their successors are duly elected. Any officers may be
removed from office at any time, with or without cause, by the vote of a
majority of the authorized number of Directors. The Board may fill vacancies or
elect new officers at any time.
3. Chairman. The Chairman shall be a director and shall preside at
meetings of the Board and meetings of the Shareholders. The Chairman shall be
responsible for Board and Shareholder governance and shall have such duties and
responsibilities as are customarily assigned to such positions.
4. Vice Chairman. The Vice Chairman shall be a director and, in the
absence of the Chairman, shall preside at meetings of the Board and meetings of
Shareholders. The Vice Chairman shall assist the Chairman in his responsibility
for Board and Shareholder governance and shall have such duties as are
customarily assigned to such position.
5. President. The duties of the President of the Corporation shall
include, but not be limited to, assisting the Chief Executive Officer (to the
extent the President is not also
<PAGE>
the Chief Executive Officer) in directing the overall business, affairs and
operations of the Corporation.
6. Vice Presidents. The Vice Presidents, one of whom shall be the
chief financial officer, shall have such duties as the President or the Board
shall designate.
7. Chief Financial Officer. The Chief Financial Officer shall be
responsible for the issuance of securities and the management of the
Corporation's cash, receivables and temporary investments.
8. Secretary and Assistant Secretary. The Secretary shall attend
all meetings of the Shareholders and the Board, keep a true and accurate record
of the proceedings of all such meetings and attest the same by his or her
signature, have charge of all books, documents and papers which appertain to the
office, have custody of the corporate seal and affix it to all papers and
documents requiring sealing, give all notices of meetings, have the custody of
the books of stock certificates and transfers, issue all stock certificates, and
perform all other duties usually appertaining to the office and all duties
designated by the bylaws, the President or the Board. In the absence of the
Secretary, any Assistant Secretary may perform the duties and shall have the
powers of the Secretary.
9. Treasurer and Assistant Treasurer. The Treasurer shall perform
all duties usually appertaining to the office and all duties designated by the
President or the Board. In the absence of the Treasurer, any Assistant
Treasurer may perform the duties and shall have all the powers of the Treasurer.
10. Controller and Assistant Controller. The Controller shall be
responsible for establishing financial control policies for the Corporation,
shall be its principal accounting officer, and shall perform all duties usually
appertaining to the office and all duties designated by the President or the
Board. In the absence of the Controller, any Assistant Controller may perform
the duties and shall have all the powers of the Controller.
11. Chief Executive Officer. The duties of the Chief Executive
Officer of the Corporation shall include, but not be limited to, directing the
overall business, affairs and operations of the Corporation, through its
officers, all of whom shall report directly or indirectly to the Office of the
Chairman or, if there is no Office of the Chairman, to the Chief Executive
Officer.
12. Chief Operating Officer. The duties of the Chief Operating
Officer of the Corporation shall include, but not be limited to, directing the
day-to-day business, affairs and operations of the Corporation, under the
supervision of the Chief Executive Officer and (to the extent the Chief
Executive Officer is not also the President) the President.
2
<PAGE>
ARTICLE III.
DIRECTORS
1. Number. The Board shall consist of not less than two nor more
than eight Directors. The exact number of Directors shall be fixed from time to
time, within the limits specified, by approval of the Board in the form of an
amendment to these By-laws or in a manner otherwise specified in the Articles of
Incorporation. Initially, the Board shall consist of two Directors.
2. Election. A Board shall be elected as set forth in the articles
of incorporation.
3. Vacancies. Vacancies in the Board may be filled as set forth in
the articles of incorporation.
4. Compensation. Members of the Board shall receive such
compensation as the Board may from time to time determine.
5. Regular Meetings. A regular meeting of the Board shall be held
immediately after each Annual Meeting of Shareholders. Other regular meetings
of the Board shall be held on such dates and at such times and places as may be
designated by resolution of the Board.
6. Special Meetings. Special meetings of the Board may be called at
any time by the Chairman, the Vice Chairman, the President or a majority of the
authorized number of Directors.
7. Notice of Meetings. Written notice shall be given to each
Director of the date, time and place of each regular meeting and each special
meeting of the Board. If given by mail, such notice shall be mailed to each
Director at least four days before the date of such meeting, or such notice may
be given to each Director personally or by telegram at least 48 hours before the
time of such meeting. Every notice of special meeting shall state the purpose
for which such meeting is called. Notice of a meeting need not be given to any
Director who signs a waiver of notice, whether before or after the meeting, or
who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such Director.
8. Quorum. A majority of the authorized number of Directors shall
be necessary to constitute a quorum for the transaction of business, and every
act or decision of a majority of the Directors present at a meeting at which a
quorum is present shall be valid as the act of the Board, provided that a
meeting at which a quorum is initially present may continue to transact
business, notwithstanding the withdrawal of Directors, if any action taken is
approved by at least a majority of the required quorum for such meeting. A
majority of Directors present at any meeting, in the absence of a quorum, may
adjourn to another time.
3
<PAGE>
9. Action Upon Consent. Any action required or permitted to be
taken by the Board may be taken without a meeting, if all members of the Board
shall individually or collectively consent in writing to such action.
10. Telephonic Participation. Members of the Board may participate
in a meeting through use of conference telephone or similar communications
equipment, so long as all members participating in the meeting can hear one
another. Such participation constitutes presence in person at the meeting.
11. Directors Emeritus. The Board may from time to time elect one or
more Directors Emeritus. Each Director Emeritus shall have the privilege of
attending meetings of the Board, upon invitation of the Chairman, the Vice
Chairman or the President. No Director Emeritus shall be entitled to vote on
any business coming before the Board or be counted as a member of the Board for
any purpose whatsoever.
ARTICLE IV.
COMMITTEES
1. Executive Committee. The Board shall appoint an Executive
Committee. The Chairman shall be ex officio the Chairman thereof, unless the
Board shall appoint another member as Chairman. The Executive Committee shall
be composed of members of the Board, and shall at all times be subject to its
control. The Executive Committee shall have all the authority of the Board,
except with respect to:
(a) The approval of any action which also requires Shareholders',
approval;
(b) The filling of vacancies on the Board or on any committee;
(c) The fixing of compensation of the Directors for serving on
the Board or on any committee;
(d) The amendment or repeal of bylaws or the adoption of new
bylaws;
(e) The amendment or repeal of any resolution of the Board which
by its express terms is not so amendable or repealable;
(f) A distribution to the Shareholders; and
(g) The appointment of other committees of the Board or the
members thereof.
2. Audit Committee. The Board shall appoint an Audit Committee
comprised solely of Directors who are neither officers nor employees of the
Corporation and who are free
4
<PAGE>
from any relationship that, in the opinion of the Board, would interfere with
the exercise of independent judgment as committee members. The Audit Committee
shall review and make recommendations to the Board with respect to:
(a) The engagement of an independent accounting firm to audit the
Corporation's financial statements and the terms of such engagement;
(b) The policies and procedures for maintaining the Corporation's
books and records and for furnishing appropriate information to the independent
auditor;
(c) The evaluation and implementation of any recommendations made
by the independent auditor;
(d) The adequacy of the Corporation's internal audit controls and
related personnel; and
(e) Such other matters relating to the Corporation's financial
affairs and accounts as the Committee deems desirable.
3. Other Committees. The Board may appoint such other committees of
its members as it shall deem desirable, and, within the limitations specified
for the Executive Committee, may vest such committees with such powers and
authorities as it shall see fit, and all such committees shall at all times be
subject to its control.
4. Notice of Meetings. Notice of each meeting of any committee of
the Board shall be given to each member of such committee, and the giving of
such notice shall be subject of the same requirements as the giving of notice of
meetings of the Board, unless the Board shall establish different requirements
for the giving of notice of committee meetings.
5. Conduct of Meetings. The provisions of these bylaws with respect
to the conduct of meetings of the Board shall govern the conduct of committee
meetings. Written minutes shall be kept of all committee meetings.
ARTICLE V.
SHAREHOLDER MEETINGS
1. Annual Meeting. (a) An Annual Meeting of Shareholders shall be
held each year on such date and at such time as may be designated by resolution
of the Board.
(b) At an Annual Meeting of Shareholders, only such business shall be
conducted as shall have been properly brought before the Annual Meeting. To be
properly brought before Annual Meeting, business must be (i) specified in the
notice of the Annual Meeting (or any supplement thereto) given by or at the
direction of the Board and (ii) otherwise properly brought before an Annual
Meeting by a Shareholder. For business to be properly brought before an Annual
Meeting by a Shareholder, including the nomination of any person
5
<PAGE>
(other than a person nominated by or at the direction of the Board) for election
to the Board, the Shareholder must have given timely and proper written notice
to the Secretary of the Corporation. To be timely, the Shareholder's written
notice must be received at the principal executive office of the Corporation not
less than 60 nor more than 120 in advance of the date corresponding to the date
of the last Annual Meeting of Shareholders; provided, however, that in the event
the Annual Meeting to which the Shareholder's written notice relates is to be
held on a date that differs by more than 60 days from the date of the last
Annual Meeting of Shareholders, the Shareholder's written notice to be timely
must be so received not later than the close of business on the tenth day
following the date on which public disclosure of the date of the Annual Meeting
is made or given to Shareholders. To be proper, the Shareholder's written notice
must set forth as to each matter the Shareholder proposes to bring before the
Annual Meeting (w) a brief description of the business desired to be brought
before the Annual Meeting, (x) the name and address of the Shareholder as they
appear on the Corporation's books, (y) the class and number of shares of the
Corporation that are beneficially owned by the Shareholder and (z) any material
interest of the Shareholder in such business. In addition, if the Shareholder's
written notice relates to the nomination at the Annual Meeting of any person for
election to the Board, such notice to be proper must also set forth (A) the
name, age, business address and residence address of each person to be so
nominated, (B) the principal occupation or employment of each such person, (C)
the number of shares of capital stock of the Corporation beneficially owned by
each such person and (D) such other information concerning each such person as
would be required under the rules of the Securities and Exchange Commission in a
proxy statement soliciting proxies for the election of such person as a
Director, and must be accompanied by a consent, signed by each such person, to
serve as a Director of the Corporation if elected. Notwithstanding anything in
the Bylaws to the contrary, no business shall be conducted at an Annual Meeting
except in accordance with the procedures set forth in this Section l(b) of
Article V.
2. Special Meetings. Special meetings of the Shareholders for any
purpose whatsoever may be called at any time by the Chairman, the Vice Chairman,
the President, or the Board, or by one or more Shareholders holding not less
than one-tenth of the voting power of the Corporation. Within five business
days after receiving such a written request from Shareholders of the
corporation, the Board shall determine whether Shareholders owning not less than
one-tenth of the voting power of the Corporation support the call of a special
meeting and notify the requesting party or parties of its finding.
3. Place of Meetings. All meetings of the Shareholders shall be
held at the principal office of the Corporation in [San Diego], California, or
at such other locations as may be designated by the Board.
4. Notice of Meetings. Written notice shall be given to each
Shareholder entitled to vote of the date, time, place and general purpose of
each meeting of Shareholders. Notice may be given personally, or by mail, or by
telegram, charges prepaid, to the Shareholder's address appearing on the books
of the Corporation. If a Shareholder supplies no address to the Corporation,
notice shall be deemed to be given if mailed to the place where the principal
office of the Corporation is situated or published at least once in some
newspaper of general circulation
6
<PAGE>
in the county of said principal office. Notice of any meeting shall be sent to
each Shareholder entitled thereto not less thin 10 or more than 60 days before
such meeting.
5. Voting. The Board may fix a time in the future not less than 10
or more than 60 days preceding the date of any meeting of Shareholders, or not
more than 60 days preceding the date fixed for the payment of any dividend or
distribution, or for the allotment of rights, or when any change or conversion
or exchange of shares shall go into effect, as a record date for the
determination of the Shareholders entitled to notice of and to vote at any such
meeting or entitled to receive any such dividend or distribution, or any such
allotment of rights, or to exercise the rights in respect to any such change,
conversion, or exchange of shares. In such case only Shareholders of record at
the close of business on the date so fixed shall be entitled to notice of and to
vote at such meeting or to receive such dividend, distribution or allotment of
rights, or to exercise such rights, as the case may be, notwithstanding any
transfer of any shares on the books of the Corporation after any record date
fixed as aforesaid. The Board may close the books of the Corporation against
any transfer of shares during the whole or any part of such period.
6. Quorum. At any Shareholders' meeting a majority of the shares
entitled to vote must be represented in order to constitute a quorum for the
transaction of business, but a majority of the shares present, or represented by
proxy, though less than a quorum, may adjourn the meeting to some other date,
and from day to day or from time to time thereafter until a quorum is present.
7. Confidential Voting. Each Shareholder of the Corporation shall
be entitled to elect voting confidentiality as provided in this Section 7 on all
matters submitted to Shareholders by the Board and each form of proxy, consent,
ballot or other written voting instruction distributed by the Shareholders shall
include a check box or other appropriate mechanism by which Shareholders who
desire to do so may so elect voting confidentiality. All inspectors of
election, vote tabulators and other persons appointed or engaged by or on behalf
of the process voting instructions (none of whom shall be a Director or officer
of the Corporation or any of its affiliates) shall be advised of and instructed
to comply with this Section 7 and, except as required or permitted hereby, not
at any time to disclose to any person (except to other persons engaged in
processing voting instructions), the identity and individual vote of any
Shareholder electing voting confidentiality; provided, however, that voting
confidentiality shall not apply and the name and individual vote of any
Shareholder may be disclosed to the Corporation or to any person (i) to the
extent that such disclosure is required by applicable law or is appropriate to
assert or defend any claim relating to voting or (ii) with respect to any matter
for which votes of Shareholders are solicited in opposition to any of the
nominees or the recommendations of the Board unless the persons engaged in such
opposition solicitation provide Shareholders of the Corporation with voting
confidentiality (which, if not otherwise provided, will be requested by the
Corporation) comparable in the opinion of the Corporation to the voting
confidentiality provided by this Section 7.
7
<PAGE>
ARTICLE VI.
CERTIFICATE OF SHARES
1. Form. Certificates for shares of the Corporation shall state the
name of the registered holder of the shares represented thereby, and shall be
signed by the Chairman, the Vice Chairman, the President or a Vice President and
by the Secretary or an Assistant Secretary. Any such signature may be by
facsimile thereof.
2. Surrender. Upon a surrender to the Secretary, or to a transfer
agent or transfer clerk of the Corporation, of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation shall issue a new certificate to the
party entitled thereto, cancel the old certificate and record the transaction
upon its books.
3. Right of Transfer. When a transfer of shares on the books is
requested, and there is a reasonable doubt as to the rights of the persons
seeking such transfer, the Corporation, or its transfer agent or transfer clerk,
before entering the transfer of the shares on its books or issuing any
certificate therefor, may require from such person reasonable proof of his or
her rights, and, if there remains a reasonable doubt in respect thereto, may
refuse a transfer unless such person shall give adequate security or a bond of
indemnity executed by a corporate surety, or by two individual sureties,
satisfactory to the Corporation as to form, amount and responsibility of
sureties.
4. Conflicting Claims. The Corporation shall be entitled to treat
the holder of record of any shares as the holder in fact thereof and shall not
be bound to recognize any equitable or other claim to or interest in such shares
on the part of any other person, whether or not it shall have express or other
notice thereof, save as expressly provided by the laws of the State of
California.
5. Loss Theft and Destruction. In the case of the alleged loss,
theft or destruction of any certificate of shares, another may be issued in its
place as follows: (1) the owner of the lost, stolen or destroyed certificate
shall file with the transfer agent of the Corporation a duly executed Affidavit
or Loss and Indemnity Agreement and Certificate of Coverage, accompanied by a
check representing the cost of the bond as outlined in any blanket lost
securities and avoid administration bond previously approved by the Directors of
the Corporation and executed by a surety company satisfactory to them, which
bond shall indemnify the Corporation, its transfer agents and registrars; or (2)
the Board may, in its discretion, authorize the issuance of a new certificate to
replace a lost, stolen or destroyed certificate on such other terms and
conditions as it may determine to be reasonable.
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<PAGE>
ARTICLE VII.
INDEMNIFICATION OF CORPORATE AGENTS
1. Definitions. For the purposes of this Article VII, "agent" means
any person who (i) is or was a Director, officer, employee or other agent of the
Corporation, (ii) is or was serving at the request of the Corporation as a
director, officer, employee or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise or (iii) was a director,
officer, employee or agent of a foreign or domestic corporation which was a
predecessor corporation of the Corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" means any threatened,
pending or completed action or proceeding, whether civil, criminal,
administrative or investigative; and "expenses" includes, without limitation,
attorneys' fees and any expenses of establishing a right to indemnification
under Sections 4 or 5(c) of this Article VII.
2. Indemnification for Third Party Actions. The Corporation shall
indemnify any person who is or was a party, or is threatened to be made a party,
to any proceeding (other than an action by or in the right of the Corporation to
procure a judgment in its favor) by reason of the fact that such person is or
was an agent of the Corporation against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with such
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the Corporation and, in the
case of a criminal proceeding, had no reasonable cause to believe the conduct of
such person was unlawful. The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in good faith
and in a manner which the person reasonably believed to be in the best interests
of the Corporation or that the person had reasonable cause to believe that the
person's conduct was unlawful.
3. Indemnification for Derivative Actions. The Corporation shall
indemnify any person who is or was a party, or is threatened to be made a party,
to any threatened, pending or completed action by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was an agent of the Corporation against expenses actually and
reasonably incurred by such person in connection with the defense or settlement
of such action if such person acted in good faith and in a manner such person
believed to be in the best interests of the Corporation and its Shareholders.
No indemnification shall be made under this Section 3 (a) in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation in the performance of such person's duty to the
Corporation and its Shareholders, unless and only to the extent that the court
in which such proceeding is or was pending shall determine upon application
that, in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for expenses and then only to the extent that
the court shall determine; (b) of amounts paid in settling or otherwise
disposing of a pending action without court approval; or (c) of expenses
incurred in defending a pending action which is settled or otherwise disposed of
without court approval.
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<PAGE>
4. Successful Defense. Notwithstanding any other provision of this
Article, to the extent that an agent of the Corporation has been successful on
the merits or otherwise (including the dismissal of an action without prejudice
or the settlement of a proceeding or action without admission of liability) in
defense of any proceeding referred to in Sections 2 or 3 of this Article, or in
defense of any claim, issue or matter therein, the agent shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith.
5. Discretionary Indemnification. Except as provided in Section 4
of this Article VII, any indemnification under Section 3 hereof shall be made by
the Corporation only if authorized in the specific case, upon a determination
that indemnification of the agent is proper in the circumstances because the
agent has met the applicable standard of conduct set forth in Section 2 or 3, by
(a) a majority vote of a quorum consisting of Directors who are not parties to
such proceeding; (b) if such a quorum of Directors is not obtainable, by
independent legal counsel in a written opinion; (c) approval by the affirmative
vote of a majority of the shares of this Corporation represented and voting at a
duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the required quorum) or by
the written consent of holders of a majority of the outstanding shares which
would be entitled to vote at such meeting and, for such purpose, the shares
owned by the person to be indemnified shall not be considered outstanding or
entitled to vote; or (d) the court in which such proceeding is or was pending,
upon application made by the Corporation, the agent or the attorney or other
person rendering services in connection with the defense, whether or not such
application by said agent, attorney or other person is opposed by the
Corporation.
6. Advancement of Expenses. Expenses incurred in defending any
proceeding may be advanced by the Corporation prior to the final disposition of
such proceeding upon receipt of an undertaking by or on behalf of the agent to
repay such amount if it shall be determined ultimately that the agent is not
entitled to be indemnified as authorized in this Article VII.
7. Restriction on Indemnification. No indemnification or advance
shall be made under this Article VII, except as provided in Sections 4 and 6
hereof, in any circumstance where it appears that it would be inconsistent with
(a) a provision of the articles of incorporation of the Corporation, its bylaws,
a resolution of the Shareholders or an agreement in effect at the time of the
accrual of the alleged cause of action asserted in the proceeding in which the
expenses were incurred or other amounts were paid which prohibits or otherwise
limits indemnification; or (b) any condition expressly imposed by a court in
approving a settlement.
8. Non-Exclusive. The indemnification provided by this Article VII
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any statute, bylaw, agreement, vote of
Shareholders or disinterested Directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office. The rights to indemnification under this Article VII shall continue as
to a person who has ceased to be a Director, officer, employee, or agent and
shall inure to the benefit of the heirs, executors, and administrators of the
person. Nothing contained in this Section 8 shall affect any
10
<PAGE>
right to indemnification to which persons other than such Directors and officers
may be entitled by contract or otherwise.
9. Expenses as a Witness. To the extent that any agent of the
Corporation is by reason of such position, or a position with another entity at
the request of the Corporation, a witness in any action, suit or proceeding, he
or she shall be indemnified against all costs and expenses actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
10. Insurance. The Corporation may purchase and maintain directors
and officers liability insurance, at its expense, to protect itself and any
Director, officer or other named or specified agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss asserted against or incurred by the agent
in such capacity or arising out of the agent's status as such, whether or not
the Corporation would have the power to indemnify the agent against such
expense, liability or loss under the provisions of this Article II or under the
General Corporation Law.
11. Separability. Each and every paragraph, sentence, term and
provision of this Article VII is separate and distinct so that if any paragraph,
sentence, term or provision hereof shall be held to be invalid or unenforceable
for any reason, such invalidity or unenforceability shall not affect the
validity or unenforceability of any other paragraph, sentence, term or provision
hereof. To the extent required, any paragraph, sentence, term or provision of
this Article may be modified by a court of competent jurisdiction to preserve
its validity and to provide the claimant with, subject to the limitations set
forth in this Article and any agreement between the Corporation and claimant,
the broadest possible indemnification permitted under applicable law. If this
Article VII or any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Corporation shall nevertheless have
the power to indemnify each Director, officer, employee, or other agent against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit, proceeding or investigation,
whether civil, criminal or administrative, and whether internal or external,
including a grand jury proceeding and including an action or suit brought by or
in the right of the Corporation, to the full extent permitted by any applicable
portion of this Article VII that shall not have been invalidated or by any other
applicable law.
12. Agreements. Upon, and in the event of, a determination of the
Board to do so, the Corporation is authorized to enter into indemnification
agreements with any or all of its Directors, officers, employees and other
agents providing for indemnification to the fullest extent permissible under
California law and the Corporation's articles of incorporation.
13. Retroactive Appeal. In the event this Article VII is repealed or
modified so as to reduce the protection afforded herein, the indemnification
provided by this Article VII shall remain in full force and effect with respect
to any act or omission occurring prior to such repeal or modification.
11
<PAGE>
ARTICLE VIII.
OBLIGATIONS
All obligations of the Corporation, including promissory notes,
checks, drafts, bills of exchange, and contracts of every kind, and evidences of
indebtedness issued in the name of, or payable to, or executed on behalf of the
Corporation, shall be signed or endorsed by such officer or officers, or agent
or agents, of the Corporation and in such manner as, from time to time, shall be
determined by the Board.
ARTICLE IX.
CORPORATE SEAL
The corporate seal shall set forth the name of the Corporation, state,
and date of incorporation.
ARTICLE X.
AMENDMENTS
These bylaws may be amended or repealed as set forth in the articles
of incorporation.
ARTICLE XI.
AVAILABILITY OF BYLAWS
A current copy of these bylaws shall be mailed or otherwise furnished
to any Shareholder of record within five days after receipt of a request
therefor.
12
<PAGE>
Exhibit 3.5
CERTIFICATE OF TRUST OF
SEMPRA ENERGY CAPITAL TRUST I
This certificate of Trust of Sempra Energy Capital Trust I (the "Trust"),
dated April 22, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Sec 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of Trust is
Sempra Energy Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of the Trust
with a principal place of business in the State of Delaware is The Bank of
New York (Delaware).
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust in accordance with Section
3811(a)(1) of the Act.
Neal E. Schmale, as Regular Trustee
/s/ Neal E Schmale
- ------------------
Frank H. Ault, as Regular Trustee
/s/ Frank H. Ault
- -----------------
Charles A. McMonagle, as Regular Trustee
/s/ Charles A. McMonagle
- ------------------------
<PAGE>
The Bank of New York (Delaware),
as Delaware Trustee
By: /s/ Walter N. Gitlin
--------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
The Bank of New York,
as Property Trustee
By: /s/ Michele L. Russo
--------------------
Name: Michele L. Russo
Title: Assistant Treasurer
<PAGE>
Exhibit 3.6
CERTIFICATE OF TRUST OF
SEMPRA ENERGY CAPITAL TRUST II
This certificate of Trust of Sempra Energy Capital Trust II (the "Trust"),
dated April 22, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Sec 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of Trust is
Sempra Energy Capital Trust II.
2. Delaware Trustee. The name and business address of the trustee of the Trust
with a principal place of business in the State of Delaware is The Bank of
New York (Delaware).
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust in accordance with Section
3811(a)(1) of the Act.
Neal E. Schmale, as Regular Trustee
/s/ Neal E Schmale
- -------------------------
Frank H. Ault, as Regular Trustee
/s/ Frank H. Ault
- -------------------------
Charles A. McMonagle, as Regular Trustee
/s/ Charles A. McMonagle
- -------------------------
<PAGE>
The Bank of New York (Delaware),
as Delaware Trustee
By: /s/ Walter N. Gitlin
--------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
The Bank of New York,
as Property Trustee
By: /s/ Michele L. Russo
--------------------
Name: Michele L. Russo
Title: Assistant Treasurer
<PAGE>
Exhibit 3.7
CERTIFICATE OF TRUST OF
SEMPRA ENERGY CAPITAL TRUST III
This certificate of Trust of Sempra Energy Capital Trust III (the "Trust"),
dated April 22, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Sec 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed by this Certificate of Trust is
Sempra Energy Capital Trust III.
2. Delaware Trustee. The name and business address of the trustee of the Trust
with a principal place of business in the State of Delaware is The Bank of
New York (Delaware).
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of the
Trust, have duly executed this Certificate of Trust in accordance with Section
3811(a)(1) of the Act.
Neal E. Schmale, as Regular Trustee
/s/ Neal E Schmale
- ------------------
Frank H. Ault, as Regular Trustee
/s/ Frank H. Ault
- -----------------
Charles A. McMonagle, as Regular Trustee
/s/ Charles A. McMonagle
- ------------------------
<PAGE>
The Bank of New York (Delaware),
as Delaware Trustee
By: /s/ Walter N. Gitlin
--------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
The Bank of New York,
as Property Trustee
By: /s/ Michele L. Russo
--------------------
Name: Michele L. Russo
Title: Assistant Treasurer
<PAGE>
Exhibit 4.1
SEMPRA ENERGY
TO
CITIBANK, N.A.
Trustee
____________________________________________
Senior Indenture
Dated as of _________, ______
____________________________________________
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310
THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------------- -----------------
<S> <C>
Section 310(a)(1)......................................... 609
(a)(2)......................................... 609
(a)(3)......................................... Not Applicable
(a)(4)......................................... Not Applicable
(b)............................................ 608
610
Section 311(a)............................................ 613
(b)............................................ 613
Section 312(a)............................................ 701
702
(b)............................................ 702
(c)............................................ 702
Section 313(a)............................................ 703
(b)............................................ 703
(c)............................................ 703
(d)............................................ 703
Section 314(a)............................................ 704
(a)(4)......................................... 101
1005
(b)............................................ Not Applicable
(c)(1)......................................... 102
(c)(2)......................................... 102
(c)(3)......................................... Not Applicable
(d)............................................ Not Applicable
(e)............................................ 102
Section 315(a)............................................ 601
(b)............................................ 602
(c)............................................ 601
(d)............................................ 601
(e)............................................ 514
Section 316(a)............................................ 101
(a)(1)(A)...................................... 502
512
(a)(1)(B)...................................... 513
(a)(2)......................................... Not Applicable
(b)............................................ 508
(c)............................................ 104
Section 317(a)(1)......................................... 503
(a)(2)......................................... 504
(b)............................................ 1003
Section 318(a)............................................ 107
- -------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Parties.............................................................................. 1
Recitals of the Corporation.......................................................... 1
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION......................................................... 1
Section 101. Definitions.......................................................... 1
Section 102. Compliance Certificates and Opinions................................. 7
Section 103. Form of Documents Delivered to Trustee............................... 7
Section 104. Acts of Holders; Record Dates........................................ 8
Section 105. Notices, Etc., to Trustee and Corporation............................ 10
Section 106. Notice to Holders; Waiver............................................ 11
Section 107. Conflict with Trust Indenture Act.................................... 11
Section 108. Effect of Headings and Table of Contents............................. 11
Section 109. Successors and Assigns............................................... 11
Section 110. Separability Clause.................................................. 11
Section 111. Benefits of Indenture................................................ 12
Section 112. Governing Law........................................................ 12
Section 113. Legal Holidays....................................................... 12
ARTICLE II. SECURITY FORMS.......................................................... 12
Section 201. Forms Generally...................................................... 12
Section 202. Form of Face of Security............................................. 13
Section 203. Form of Reverse of Security.......................................... 14
Section 204. Form of Legend for Global Securities................................. 18
Section 205. Form of Trustee's Certificate of Authentication...................... 18
ARTICLE III. THE SECURITIES......................................................... 19
Section 301. Amount Unlimited; Issuable in Series................................. 19
Section 302. Denominations........................................................ 22
Section 303. Execution, Authentication, Delivery and Dating....................... 22
Section 304. Temporary Securities................................................. 24
Section 305. Registration, Registration of Transfer and Exchange.................. 24
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..................... 26
Section 307. Payment of Interest; Interest Rights Preserved....................... 27
Section 308. Persons Deemed Owners................................................ 28
Section 309. Cancellation......................................................... 28
Section 310. Computation of Interest.............................................. 29
Section 311. CUSIP Numbers........................................................ 29
</TABLE>
ii
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<TABLE>
<S> <C> <C>
ARTICLE IV. SATISFACTION AND DISCHARGE.............................................. 29
Section 401. Satisfaction and Discharge of Indenture.............................. 29
Section 402. Application of Trust Money........................................... 30
ARTICLE V. REMEDIES.............................................................. 31
Section 501. Events of Default.................................................... 31
Section 502. Acceleration of Maturity; Rescission and Annulment................... 32
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee...... 33
Section 504. Trustee May File Proofs of Claim..................................... 34
Section 505. Trustee May Enforce Claims Without Possession of Securities.......... 34
Section 506. Application of Money Collected....................................... 34
Section 507. Limitation on Suits.................................................. 35
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest........................................................... 36
Section 509. Restoration of Rights and Remedies................................... 36
Section 510. Rights and Remedies Cumulative....................................... 36
Section 511. Delay or Omission Not Waiver......................................... 36
Section 512. Control By Holders................................................... 36
Section 513. Waiver of Past Defaults.............................................. 37
Section 514. Undertaking for Costs................................................ 37
Section 515. Waiver of Stay or Extension Laws..................................... 37
ARTICLE VI. THE TRUSTEE............................................................. 38
Section 601. Certain Duties and Responsibilities.................................. 38
Section 602. Notice of Defaults................................................... 38
Section 603. Certain Rights of Trustee............................................ 38
Section 604. Not Responsible for Recitals or Issuance of Securities............... 39
Section 605. May Hold Securities.................................................. 39
Section 606. Money Held in Trust.................................................. 40
Section 607. Compensation and Reimbursement....................................... 40
Section 608. Conflicting Interests................................................ 40
Section 609. Corporate Trustee Required; Eligibility.............................. 41
Section 610. Resignation and Removal; Appointment of Successor.................... 41
Section 611. Acceptance of Appointment by Successor............................... 42
Section 612. Merger, Conversion, Consolidation or Succession to Business.......... 43
Section 613. Preferential Collection of Claims Against Corporation................ 44
Section 614. Appointment of Authenticating Agent.................................. 44
Section 615. Trustee's Application for Instructions............................... 44
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION.................. 45
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders........ 45
Section 702. Preservation of Information; Communications to Holders............... 46
Section 703. Reports by Trustee................................................... 46
Section 704. Reports by Corporation............................................... 46
</TABLE>
iii
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<TABLE>
<S> <C> <C>
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER......................... 47
Section 801. Corporation May Consolidate, Etc., on Certain Terms.................. 47
Section 802. Successor Substituted................................................ 47
ARTICLE IX. SUPPLEMENTAL INDENTURES................................................. 47
Section 901. Supplemental Indentures Without Consent of Holders................... 47
Section 902. Supplemental Indentures With Consent of Holders...................... 49
Section 903. Execution of Supplemental Indentures................................. 50
Section 904. Effect of Supplemental Indentures.................................... 50
Section 905. Conformity with Trust Indenture Act.................................. 50
Section 906. Reference in Securities to Supplemental Indentures................... 50
ARTICLE X. COVENANTS................................................................ 50
Section 1001. Payment of Principal, Premium and Interest.......................... 50
Section 1002. Maintenance of Office or Agency..................................... 50
Section 1003. Money for Securities Payments to Be Held in Trust................... 51
Section 1004. Corporate Existence................................................. 52
Section 1005. Statement by Officers as to Default................................. 52
Section 1006. Waiver of Certain Covenants......................................... 52
ARTICLE XI. REDEMPTION OF SECURITIES................................................ 53
Section 1101. Applicability of Article............................................ 53
Section 1102. Election to Redeem; Notice to Trustee............................... 53
Section 1103. Selection by Trustee of Securities to Be Redeemed................... 53
Section 1104. Notice of Redemption................................................ 54
Section 1105. Securities Payable on Redemption Date............................... 55
Section 1106. Securities Redeemed in Part......................................... 56
Section 1007. Calculation of Original Issue Discount.............................. 53
ARTICLE XII. SINKING FUNDS.......................................................... 56
Section 1201. Applicability of Article............................................ 56
Section 1202. Satisfaction of Sinking Fund Payments with Securities............... 56
Section 1203. Redemption of Securities for Sinking Fund........................... 57
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE.................................... 57
Section 1301. Applicability of Article............................................ 57
Section 1302. Defeasance and Discharge............................................ 57
Section 1303. Covenant Defeasance................................................. 58
Section 1304. Conditions to Defeasance or Covenant Defeasance..................... 58
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions.......................................... 59
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS........ 60
Section 1401. Indenture and Securities Solely Corporate Obligations............... 60
</TABLE>
iv
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<TABLE>
<S> <C>
TESTIMONIUM.......................................................................... 65
SIGNATURES AND SEALS................................................................. 65
</TABLE>
v
<PAGE>
INDENTURE, dated as of _________, ______, between Sempra Energy, a
corporation duly organized and existing under the laws of the State of
California (herein called the "Corporation"), having its principal office at 101
Ash Street, San Diego, California 92101, and Citibank, N.A., a national banking
association duly organized and existing under the laws of the United States of
America, as Trustee (herein called the "Trustee").
RECITALS OF THE CORPORATION
The Corporation has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
<PAGE>
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Corporation
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means a day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to remain closed or (iii) a day on which the Corporate Trust Office of the
Trustee is closed for business.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Corporation by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 111 Wall Street, 5th Floor, New
York, New York 10005.
2
<PAGE>
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series which is issued to a Depositary or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or
3
<PAGE>
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the Chief Executive Officer, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary, of
the Corporation, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1005 shall be the principal
executive, financial or accounting officer of the Corporation.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Corporation, or other counsel.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption the necessary amount of
money or money's worth has been theretofore deposited with the Trustee or
any Paying Agent (other than the Corporation) in trust or set aside and
segregated in trust by the Corporation (if the Corporation shall act as its
own Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be
4
<PAGE>
the amount of the principal thereof which would be due and payable as of such
date upon acceleration of the Maturity thereof to such date pursuant to Section
502, (B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the principal amount
of a Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in
such Clause), and (D) Securities owned by the Corporation or any other obligor
upon the Securities or any Affiliate of the Corporation or of such other
obligor, whether of record or beneficially, shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Corporation or any other obligor upon the Securities or any Affiliate
of the Corporation or of such other obligor.
"Paying Agent" means any Person authorized by the Corporation to pay the
principal of or any premium or interest on any Securities on behalf of the
Corporation.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Corporation upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
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"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
vice president, any assistant vice president, any senior trust officer or
assistant trust officer, any trust officer, or any other officer associated with
the corporate trust department of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such person's knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the case of such
principal, as such date may be advanced or extended as provided pursuant to the
terms of such Security and this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
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"Vice President," when used with respect to the Corporation or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Corporation to the Trustee to take
any action under any provision of this Indenture, the Corporation shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Corporation, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in
7
<PAGE>
the possession of the Corporation, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
Officers' Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date or dates
required with respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by or at
the request of the Corporation which could not have been taken had the original
document or instrument not contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered ineffective but shall be and
remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Corporation entitled to the benefits of this Indenture equally and ratably with
all other Outstanding Securities, except as aforesaid.
Section 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Corporation.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Corporation, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than the signer's individual capacity,
such
8
<PAGE>
certificate or affidavit shall also constitute sufficient proof of the signer's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Corporation
in reliance thereon, whether or not notation of such action is made upon such
Security.
The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series; provided that the
Corporation may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take or revoke the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Corporation from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Corporation, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction or to revoke
the same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record
9
<PAGE>
date. Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Corporation's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be sent to the
Corporation in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and Corporation.
-----------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Corporation shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing (which may be made via facsimile) to or with the Trustee at its
Corporate Trust Office, Attention: Global Agency and Trust Services, or
(2) the Corporation by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Corporation addressed to it at the address of its principal office
specified in the first paragraph of this instrument, Attention: Treasurer,
or at any other address previously furnished in writing to the Trustee by
the Corporation.
10
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Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles thereof.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE II.
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Corporation and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
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Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
SEMPRA ENERGY
_____________________
$ __________
No. _________ CUSIP No. ____
Sempra Energy, a corporation duly organized and existing under the laws of
the State of California (herein called the "Corporation," which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______________________, or registered
assigns, the principal sum of ________ Dollars on _________________________ [if
the Security is to bear interest prior to Maturity and interest payment periods
are not extendable, insert - , and to pay interest thereon from __________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, [insert - semi-annually, quarterly, monthly or other
description of the relevant payment period] on [________, ________,] and
__________ in each year, commencing _______________, at the rate of ____% per
annum, until the principal hereof is paid or made available for payment [if
applicable, insert - , provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
___% per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the [___________________] (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on
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demand shall bear interest at the rate of ____% per annum (to the extent that
the payment of such interest on interest shall be legally enforceable), from the
date of such demand until the amount so demanded is paid or made available for
payment. Interest on any overdue interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Corporation maintained for that purpose in _________________, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable, insert -
; provided, however, that at the option of the Corporation payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or by wire transfer at such
place and to such account at a banking institution in the United States as may
be designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated as of Date of Authentication: SEMPRA ENERGY
By
---------------------------------
Attest:
- --------------------------------
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of ________, ______ (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Corporation and Citibank, N.A., as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the
Corporation, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
14
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Security is one of the series designated on the face hereof [if applicable,
insert - , limited in aggregate principal amount to $__________].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert -
(1) on ____________ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert - on or after ___________, 19__], as a whole or in part, at
the election of the Corporation, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [if applicable, insert -
on or before _________________, ___%, and if redeemed] during the 12-month
period beginning _________ of the years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ---------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ______ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after _____________], as a whole or in part, at the
election of the Corporation, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-
month period beginning ________ of the years indicated,
Redemption Price
for Redemption Price for
Redemption Through Redemption Otherwise Than
Operation of the Through Operation
Year Sinking Fund of the Sinking Fund
---- -------------------- --------------------------
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<PAGE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Corporation may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Corporation
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on __________ in each year beginning with the year _______ and ending
with the year ______ of [if applicable, insert - not less than $___________
("mandatory sinking fund") and not more than] $____________ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Corporation otherwise than through [if applicable, insert -
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in
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respect of the payment of the principal of and premium and interest, if any, on
the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of all series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
of all series at the time Outstanding affected thereby (voting as one class).
The Indenture contains provisions permitting the Holders of not less than a
majority in principal amount of the Securities of all series at the time
Outstanding with respect to which a default under the Indenture shall have
occurred and be continuing (voting as one class), on behalf of the Holders of
the Securities of all such series, to waive, with certain exceptions, such past
default with respect to all such series and its consequences. The Indenture
also permits the Holders of not less than a majority in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Corporation with
certain provisions of the Indenture. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security
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Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and the Securities issued hereby shall be governed by and
construed in accordance with the laws of the state of New York.
Section 204. Form of Legend for Global Securities.
------------------------------------
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially the
following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Citibank, N.A.,
As Trustee
Dated:____________________
By:________________________________________
Authorized Signatory
ARTICLE III.
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable or the method by which such date shall be determined and
the right, if any, to shorten or extend the date on which the principal of
any Securities of the series is payable and the conditions to any such
change;
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(5) the rate or rates at which any Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined; the date or dates from which any such interest shall accrue;
the Interest Payment Dates on which any such interest shall be payable; the
manner (if any) of determination of such Interest Payment Dates; and the
Regular Record Date, if any, for any such interest payable on any Interest
Payment Date;
(6) the right, if any, to extend the interest payment periods and the
terms of such extension or extensions;
(7) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable and whether, if
acceptable to the Trustee, any principal of such Securities shall be
payable without presentation or surrender thereof;
(8) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part, at the
option of the Corporation and, if other than by a Board Resolution, the
manner in which any election by the Corporation to redeem the Securities
shall be evidenced;
(9) the obligation, if any, of the Corporation to redeem or purchase
any Securities of the series pursuant to any sinking fund, purchase fund or
analogous provisions or at the option of the Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(12) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Corporation or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election
20
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is to be made and the amount so payable (or the manner in which such amount
shall be determined);
(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(16) if either or both of Sections 1302 and 1303 do not apply to any
Securities of the series;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositary or Depositaries for such
Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in
Section 204 and any circumstances in addition to or in lieu of those set
forth in Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) any addition, modification or deletion of any Events of Default
or covenants provided with respect to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant
to Section 502;
(19) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(20) any other terms of the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or
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<PAGE>
an Assistant Secretary of the Corporation and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms or
the manner of determining the terms of the series.
With respect to Securities of a series offered in a Periodic Offering, the
Board Resolution (or action taken pursuant thereto), Officers' Certificate or
supplemental indenture referred to above may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order or
that such terms shall be determined by the Corporation in accordance with other
procedures specified in a Company Order as contemplated by the third paragraph
of Section 303.
Notwithstanding Section 301(2) herein and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable only in fully registered
form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Corporation by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon (which may be by facsimile) attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series executed by the
Corporation to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities, provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of electronic instructions from the
Corporation or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
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<PAGE>
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or terms of the Securities of the series
have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity with the provisions
of this Indenture, subject, in the case of Securities of a series offered
in a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Corporation in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Corporation enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Corporation of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
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<PAGE>
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Corporation in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Corporation shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Corporation shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in any other
office or agency of the Corporation in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Corporation shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Corporation in a Place of Payment for that series,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or
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<PAGE>
transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Corporation shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Corporation, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1106 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed, the Corporation shall not be required (A) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption and ending at the close of business on
the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such
25
<PAGE>
Depositary has notified the Corporation that it is unwilling or unable to
continue as Depositary for such Global Security and a successor Depositary
has not been appointed by the Corporation within 90 days of receipt by the
Corporation of such notification, (B) if at any time the Depositary ceases
to be a clearing agency registered under the Exchange Act at a time when
the Depositary is required to be so registered to act as such Depositary
and no successor Depositary shall have been appointed by the Corporation
within 90 days after it became aware of such cessation, or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301. Notwithstanding the foregoing, the Corporation may at any time
in its sole discretion determine that Securities issued in the form of a
Global Security shall no longer be represented in whole or in part by such
Global Security, and the Trustee, upon receipt of a Company Order therefor,
shall authenticate and deliver definitive Securities in exchange in whole
or in part for such Global Security.
(3) Subject to Clause (2) above, any exchange or transfer of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for or upon transfer of a Global Security or
any portion thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1106 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Corporation
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Corporation or the Trustee that such Security has been acquired by a bona fide
purchaser, the Corporation shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Corporation, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Corporation
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Corporation shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Corporation of
such Special Record Date and, in the name and at the expense of the
Corporation, shall cause notice of
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the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the
manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange, if any, on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Corporation, the Trustee nor any agent of the Corporation or the Trustee shall
be affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Corporation may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Corporation may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Corporation has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in its customary manner or
as directed by a Company Order; provided, however, that the Trustee shall not be
required to destroy such canceled Securities.
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Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
-------------
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Corporation shall promptly
notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Corporation and
thereafter repaid to the Corporation or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of
29
<PAGE>
redemption by the Trustee in the name, and at the expense, of the
Corporation,
and the Corporation, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose (i) money in an amount, (ii) Government
Obligations (as defined in Section 1304) which through the scheduled
payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than the due date of any
payment, money in an amount, or (iii) a combination thereof,
sufficient, in the case of (ii) or (iii), in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and
discharge, the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Corporation has paid or caused to be paid all other sums
payable hereunder by the Corporation; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Trustee under Section 607, the obligations
of the Corporation to any Authenticating Agent under Section 614 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive such satisfaction and discharge.
Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
30
<PAGE>
ARTICLE V.
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is inapplicable to a particular series or is specifically deleted or
modified in the Board Resolution (or action taken pursuant thereto), Officers'
Certificate or supplemental indenture under which such series of Securities is
issued or has been deleted or modified in an indenture supplemental hereto:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 60 days; provided, however, that if the Corporation is
permitted by the terms of the Securities of such series to defer the
payment in question, the date on which such payment is due and payable
shall be the date on which the Corporation is required to make payment
following such deferral, if such deferral has been elected pursuant to the
terms of the Securities; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the making of any sinking fund payment, when and as due
by the terms of a Security of that series, and continuance of such default
for a period of 60 days; or
(4) default in the performance, or breach, of any covenant of the
Corporation in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Corporation by the Trustee or to
the Corporation and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder, unless the
Trustee, or the Trustee and the Holders of a principal amount of Securities
of such series not less than the principal amount of Securities the Holders
of which gave such notice, as the case may be, shall agree in writing to an
extension of such period prior to its expiration; provided, however, that
the Trustee, or the Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action is initiated by
the Corporation within such period and is being diligently pursued; or
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(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Corporation in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Corporation a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Corporation under any applicable
federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Corporation or of any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and
in effect for a period of 90 consecutive days; or
(6) the commencement by the Corporation of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Corporation in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Corporation or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
authorization of any such action by the Board of Directors; or
(7) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Corporation (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Event of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and such
32
<PAGE>
declaration and its consequences shall, without further act, be deemed to have
been rescinded and annulled, if
(1) the Corporation has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Corporation covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 60 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
33
<PAGE>
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Corporation (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities
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<PAGE>
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
Third: To the payment of the balance, if any, to the Corporation.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
35
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Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
- --------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Corporation, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control By Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series; provided that
36
<PAGE>
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all series with respect to which any default under the
Indenture shall have occurred and be continuing (voting as one class) may, on
behalf of the Holders of all Securities of all such series, waive such past
default under the Indenture and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of the series affected.
Upon any such waiver, such default shall cease to exist and be deemed not
to have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs, including legal fees and expenses of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Corporation or the Trustee.
Section 515. Waiver of Stay or Extension Laws.
--------------------------------
The Corporation covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Corporation (to the extent that
37
<PAGE>
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Corporation mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
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<PAGE>
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, at reasonable times previously notified to the
Corporation, to examine the relevant books, records and premises of the
Corporation, personally or by agent or attorney at the sole cost of the
Corporation and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this
Indenture; and
(9) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Corporation.
Section 607. Compensation and Reimbursement.
------------------------------
The Corporation agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Corporation and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
and all loss, liability, damage, claim or expense, including taxes (other
than taxes based on the income of the Trustee) incurred without negligence,
willful misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim whether asserted by the Corporation, a Holder or any other Person or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all property and
funds held by it hereunder for any amount owing it or any predecessor Trustee
pursuant to this Section 607, except with respect to funds held in trust for the
benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Corporation. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Corporation, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Corporation. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition, at the expense of the
Corporation, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Corporation or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Corporation or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or
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any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Corporation by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Corporation, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Corporation and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Corporation. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Corporation or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Corporation shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Corporation or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the
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retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Corporation, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Corporation shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case
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any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 613. Preferential Collection of Claims Against Corporation.
-----------------------------------------------------
If and when the Trustee shall be or become a creditor of the Corporation
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Corporation (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents acceptable to the
Corporation with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided that such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the
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Corporation. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Corporation and shall give notice of such appointment in the manner provided in
Section 106 to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Corporation agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Citibank, N.A.,
As Trustee
By:________________________________________
As Authenticating Agent
By:________________________________________
Authorized Signatory
Section 615. Trustee's Application for Instructions from the Corporation.
-----------------------------------------------------------
Any application by the Trustee for written instructions from the
Corporation may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable to the Corporation for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
Corporation actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders.
-------------------------------------------------------------
The Corporation will furnish or cause to be furnished to the Trustee
(1) 15 days after each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of such Regular Record Date, and
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(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Corporation of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Corporation and the Trustee that neither the Corporation nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each _________ following the date of this Indenture, deliver to
Holders a brief report, dated as of such _________, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Corporation. The
Corporation will promptly notify the Trustee when any Securities are listed on
any stock exchange or any delisting thereof.
Section 704. Reports by Corporation.
----------------------
The Corporation shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Corporation May Consolidate, Etc., on Certain Terms.
---------------------------------------------------
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Corporation with or into any other
Person or Persons (whether or not affiliated with the Corporation), or
successive consolidations or mergers in which the Corporation or its successor
or successors shall be a party or parties, or shall prevent any conveyance or
transfer of the properties and assets of the Corporation as an entirety or
substantially as an entirety to any other Person (whether or not affiliated with
the Corporation) lawfully entitled to acquire the same; provided, however, and
the Corporation hereby covenants and agrees, that upon any such consolidation,
merger, conveyance or transfer, (i) the due and punctual payment of the
principal of and premium, if any, and interest on all of the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Corporation, shall be expressly assumed, by indenture supplemental hereto, in
form reasonably satisfactory to the Trustee, executed and delivered to the
Trustee by the Person (if other than the Corporation) formed by such
consolidation, or into which the Corporation shall have been merged, or by the
Person which shall have acquired such properties and assets, and (ii) the
Corporation shall deliver to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, conveyance or transfer
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Corporation with, or merger of the
Corporation into, any other Person or any conveyance or transfer of the
properties and assets of the Corporation as an entirety or substantially as an
entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Corporation is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Corporation under this Indenture with the
same effect as if such successor Person had been named as the Corporation
herein, and thereafter the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Corporation, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more
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indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Corporation
and the assumption by any such successor of the covenants of the
Corporation herein and in the Securities; or
(2) to add to the covenants of the Corporation for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Corporation; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
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Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture (voting as one class), by Act of said Holders delivered to the
Corporation and the Trustee, the Corporation, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture, or modifying in any manner the rights of the Holders of
Securities under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or change the coin or currency in which any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1006, or the
deletion of this proviso, in accordance with the requirements of Sections
611 and 901(8). A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel and an Officers' Certificate, each stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Corporation, to any such supplemental indenture
may be prepared and executed by the Corporation and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Corporation will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and
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where notices and demands to or upon the Corporation in respect of the
Securities of that series and this Indenture may be served. The Corporation will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Corporation shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Corporation hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Corporation of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such
purposes. The Corporation will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Corporation shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Corporation will promptly notify the Trustee of its action or
failure so to act.
The Corporation will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Corporation (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust hereunder by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any
51
<PAGE>
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Corporation, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Corporation on Company Request, or (if then held by the Corporation)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Corporation for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Corporation as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Corporation cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Corporation.
Section 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Corporation will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises. The Corporation shall
deliver to the Trustee, as soon as possible and in any event within five days
after the Corporation becomes aware of the occurrence of any Event of Default or
an event which, with notice or the lapse of time or both, would constitute an
Event of Default, an Officers' Certificate setting forth the details of such
Event of Default or default and the action which the Corporation proposes to
take with respect thereto.
Section 1005. Statement by Officers as to Default.
-----------------------------------
The Corporation will deliver to the Trustee, on or before October 15 of
each calendar year or on or before such other day in each calendar year as the
Corporation and the Trustee may from time to time agree upon, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Corporation is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Corporation
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 1006. Waiver of Certain Covenants.
---------------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Corporation may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(19), 901(2)
or 901(7) for the benefit of the Holders of such series if before the time for
such compliance the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of
52
<PAGE>
the Corporation and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
Section 1007. Calculation of Original Issue Discount.
--------------------------------------
The Corporation shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Corporation to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Corporation, the Corporation shall, at least 45 days prior to the Redemption
Date fixed by the Corporation (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of any redemption of
Securities (A) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (B)
pursuant to an election of the Corporation which is subject to a condition
specified in the terms of such Securities or elsewhere in this Indenture, the
Corporation shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series; provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
53
<PAGE>
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number(s) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series and of a
specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series and
of a specified tenor consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) such other matters as the Corporation shall deem desirable or
appropriate.
54
<PAGE>
Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any redemption of Securities at the election
of the Corporation, unless, upon the giving of notice of such redemption,
Defeasance shall have been effected with respect to such Securities pursuant to
Section 1302, such notice may state that such redemption shall be conditional
upon the receipt by the Trustee or the Paying Agent(s) for such Securities, on
or prior to the date fixed for such redemption, of money sufficient to pay the
principal of and any premium and interest on such Securities and that if such
money shall not have been so received such notice shall be of no force or effect
and the Corporation shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made, and the Trustee or Paying Agent(s) for the
Securities otherwise to have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at the election of the
Corporation, and any notice of non-satisfaction of redemption as aforesaid,
shall be given by the Corporation or, at the Corporation's request, by the
Trustee in the name and at the expense of the Corporation. Subject to the
preceding paragraph, any such notice of redemption shall be irrevocable.
Section 1105. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, and the conditions, if
any, set forth in such notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless,
in the case of an unconditional notice of redemption, the Corporation shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
said notice, such Security or portion thereof shall be paid by the Corporation
at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that no such surrender shall be a condition
to such payment if so specified as contemplated by Section 301 with respect to
such Security, and provided further that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
55
<PAGE>
Section 1106. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Corporation or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Corporation and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Corporation shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE XII.
SINKING FUNDS
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Corporation (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Corporation pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
56
<PAGE>
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Corporation will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and stating the basis for such credit and that such Securities have
not been previously so credited and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1105 and 1106.
ARTICLE XIII.
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Applicability of Article.
------------------------
Unless, pursuant to Section 301, provision is made that either or both of
(A) defeasance of any Securities or any series of Securities under Section 1302
and (B) covenant defeasance of any Securities or any series of Securities under
Section 1303 shall not apply to such Securities of a series, then the provisions
of either or both of Sections 1302 and Section 1303, as the case may be,
together with Sections 1304 and 1305, shall be applicable to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article.
Section 1302. Defeasance and Discharge.
------------------------
The Corporation may cause itself to be discharged from its obligations with
respect to any Securities or any series of Securities on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Corporation
shall be deemed to have paid and discharged the entire indebtedness represented
by such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Corporation, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when payments are due, (2) the
Corporation's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003 and with respect to the Trustee under Section 607, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(4) this Article. Subject to compliance with this Article, Defeasance with
respect to any Securities or any series of Securities by the Corporation is
permitted under this Section 1302 notwithstanding the prior exercise by the
Corporation of its rights under Section 1303 with
57
<PAGE>
respect to such Securities. Following a Defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 1303. Covenant Defeasance.
-------------------
The Corporation may cause itself to be released from its obligations under
any covenants provided pursuant to Section 301(19), 901(2), 901(6) or 901(7)
with respect to any Securities or any series of Securities for the benefit of
the Holders of such Securities and the occurrence of any event specified in
Sections 501(4) (with respect to any such covenants provided pursuant to Section
301(19), 901(2), 901(6) or 901(7)) or 501(7) shall be deemed not to be or result
in an Event of Default with respect to such Securities as provided in this
Section, in each case on and after the date the conditions set forth in Section
1304 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
the Corporation may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Corporation shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of
any payment, money in an amount, or (C) a combination thereof, sufficient,
in the case of (B) or (C), in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities
or on any Redemption Date established pursuant to Clause (3) below, in
accordance with the terms of this Indenture and such Securities. As used
herein, "Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America or the government which
issued the foreign currency in which such Securities are payable, for the
payment of which its full faith and credit is pledged or (ii) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which
issued the foreign currency in which such Securities are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which,
in either
58
<PAGE>
case (i) or (ii), is not callable or redeemable at the option of the issuer
thereof, and (y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any
Government Obligation which is specified in clause (x) above and held by
such bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any
Government Obligation which is so specified and held, provided that (except
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the Government Obligation or
the specific payment of principal or interest evidenced by such depositary
receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(5) and
(6), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(3) If the Securities are to be redeemed prior to Stated Maturity
(other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made.
(4) The Corporation shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
---------------------------------------------------------------
Miscellaneous Provisions.
------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Corporation acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal and any premium and interest,
but money so held in trust need not be segregated from other funds except to the
extent required by law.
The Corporation shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon Company Request any
money or Government
59
<PAGE>
Obligations held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1401. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
60
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In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
SEMPRA ENERGY
By /S/
-----------------------------
Attest:
/S/
- ----------------------------
Citibank, N.A.,
as Trustee
By /S/
-------------------------------
Authorized Signatory
Attest:
/S/
- ----------------------------
61
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Exhibit 4.2
SEMPRA ENERGY
TO
The Bank of New York
Trustee
____________________________________________
Subordinated Indenture
Dated as of _________, ______
____________________________________________
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310
THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------------- -----------------
<S> <C>
Section 310(a)(1)........................................... 609
(a)(2).............................................. 609
(a)(3).............................................. Not Applicable
(a)(4).............................................. Not Applicable
(b)................................................. 608
610
Section 311(a).............................................. 613
(b)................................................. 613
Section 312(a).............................................. 701
702
(b)................................................. 702
(c)................................................. 702
Section 313(a).............................................. 703
(b)................................................. 703
(c)................................................. 703
(d)................................................. 703
Section 314(a).............................................. 704
(a)(4).............................................. 101
.................................................... 1005
(b)................................................. Not Applicable
(c)(1).............................................. 102
(c)(2).............................................. 102
(c)(3).............................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 102
Section 315(a).............................................. 601
(b)................................................. 602
(c)................................................. 601
(d)................................................. 601
(e)................................................. 514
Section 316(a).............................................. 101
(a)(1)(A)........................................... 502
.................................................... 512
(a)(1)(B)........................................... 513
(a)(2).............................................. Not Applicable
(b)................................................. 508
(c)................................................. 104
Section 317(a)(1)........................................... 503
(a)(2).............................................. 504
(b).................................................1003
Section 318(a).............................................. 107
- -------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties.............................................................................. 1
Recitals of the Corporation.......................................................... 1
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION......................................................... 1
Section 101. Definitions............................................................. 1
Section 102. Compliance Certificates and Opinions.................................... 7
Section 103. Form of Documents Delivered to Trustee.................................. 8
Section 104. Acts of Holders; Record Dates........................................... 8
Section 105. Notices, Etc., to Trustee and Corporation............................... 11
Section 106. Notice to Holders; Waiver............................................... 11
Section 107. Conflict with Trust Indenture Act....................................... 11
Section 108. Effect of Headings and Table of Contents................................ 12
Section 109. Successors and Assigns.................................................. 12
Section 110. Separability Clause..................................................... 12
Section 111. Benefits of Indenture................................................... 12
Section 112. Governing Law........................................................... 12
Section 113. Legal Holidays.......................................................... 12
ARTICLE II. SECURITY FORMS.......................................................... 12
Section 201. Forms Generally......................................................... 12
Section 202. Form of Face of Security................................................ 13
Section 203. Form of Reverse of Security............................................. 15
Section 204. Form of Legend for Global Securities.................................... 19
Section 205. Form of Trustee's Certificate of Authentication......................... 19
ARTICLE III. THE SECURITIES......................................................... 20
Section 301. Amount Unlimited; Issuable in Series.................................... 20
Section 302. Denominations........................................................... 23
Section 303. Execution, Authentication, Delivery and Dating.......................... 23
Section 304. Temporary Securities.................................................... 25
Section 305. Registration, Registration of Transfer and Exchange..................... 25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........................ 27
Section 307. Payment of Interest; Interest Rights Preserved.......................... 28
Section 308. Persons Deemed Owners................................................... 29
Section 309. Cancellation............................................................ 29
Section 310. Computation of Interest................................................. 29
Section 311. CUSIP Numbers........................................................... 30
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ARTICLE IV. SATISFACTION AND DISCHARGE.............................................. 30
Section 401. Satisfaction and Discharge of Indenture................................. 30
Section 402. Application of Trust Money.............................................. 31
ARTICLE V. REMEDIES................................................................ 31
Section 501. Events of Default....................................................... 31
Section 502. Acceleration of Maturity; Rescission and Annulment...................... 33
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee......... 34
Section 504. Trustee May File Proofs of Claim........................................ 34
Section 505. Trustee May Enforce Claims Without Possession of Securities............. 35
Section 506. Application of Money Collected.......................................... 35
Section 507. Limitation on Suits..................................................... 36
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest............................................................... 36
Section 509. Restoration of Rights and Remedies...................................... 36
Section 510. Rights and Remedies Cumulative.......................................... 37
Section 511. Delay or Omission Not Waiver............................................ 37
Section 512. Control By Holders...................................................... 37
Section 513. Waiver of Past Defaults................................................. 38
Section 514. Undertaking for Costs................................................... 38
Section 515. Waiver of Stay or Extension Laws........................................ 38
ARTICLE VI. THE TRUSTEE............................................................. 39
Section 601. Certain Duties and Responsibilities..................................... 39
Section 602. Notice of Defaults...................................................... 39
Section 603. Certain Rights of Trustee............................................... 39
Section 604. Not Responsible for Recitals or Issuance of Securities.................. 40
Section 605. May Hold Securities..................................................... 40
Section 606. Money Held in Trust..................................................... 41
Section 607. Compensation and Reimbursement.......................................... 41
Section 608. Conflicting Interests................................................... 41
Section 609. Corporate Trustee Required; Eligibility................................. 42
Section 610. Resignation and Removal; Appointment of Successor....................... 42
Section 611. Acceptance of Appointment by Successor.................................. 43
Section 612. Merger, Conversion, Consolidation or Succession to Business............. 44
Section 613. Preferential Collection of Claims Against Corporation................... 45
Section 614. Appointment of Authenticating Agent..................................... 45
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
CORPORATION........................................................... 46
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders........... 46
Section 702. Preservation of Information; Communications to Holders.................. 47
Section 703. Reports by Trustee...................................................... 47
Section 704. Reports by Corporation.................................................. 47
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ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER........................... 48
Section 801. Corporation May Consolidate, Etc., on Certain Terms..................... 48
Section 802. Successor Substituted................................................... 48
ARTICLE IX. SUPPLEMENTAL INDENTURES................................................. 48
Section 901. Supplemental Indentures Without Consent of Holders...................... 48
Section 902. Supplemental Indentures With Consent of Holders......................... 50
Section 903. Execution of Supplemental Indentures.................................... 51
Section 904. Effect of Supplemental Indentures....................................... 51
Section 905. Conformity with Trust Indenture Act..................................... 51
Section 906. Reference in Securities to Supplemental Indentures...................... 51
Section 907. Subordination Unimpaired................................................ 51
ARTICLE X. COVENANTS............................................................... 51
Section 1001. Payment of Principal, Premium and Interest.............................. 51
Section 1002. Maintenance of Office or Agency......................................... 52
Section 1003. Money for Securities Payments to Be Held in Trust....................... 52
Section 1004. Corporate Existence..................................................... 53
Section 1005. Statement by Officers as to Default..................................... 53
Section 1006. Waiver of Certain Covenants............................................. 53
ARTICLE XI. REDEMPTION OF SECURITIES................................................ 54
Section 1101. Applicability of Article................................................ 54
Section 1102. Election to Redeem; Notice to Trustee................................... 54
Section 1103. Selection by Trustee of Securities to Be Redeemed....................... 54
Section 1104. Notice of Redemption.................................................... 55
Section 1105. Securities Payable on Redemption Date................................... 56
Section 1106. Securities Redeemed in Part............................................. 57
ARTICLE XII. SINKING FUNDS........................................................... 57
Section 1201. Applicability of Article................................................ 57
Section 1202. Satisfaction of Sinking Fund Payments with Securities................... 57
Section 1203. Redemption of Securities for Sinking Fund............................... 58
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE...................................... 58
Section 1301. Applicability of Article................................................ 58
Section 1302. Defeasance and Discharge................................................ 58
Section 1303. Covenant Defeasance..................................................... 59
Section 1304. Conditions to Defeasance or Covenant Defeasance......................... 59
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions............................................... 60
ARTICLE XIV. SUBORDINATION........................................................... 61
Section 1401. Securities Subordinated to Senior Indebtedness.......................... 61
Section 1402. Disputes with Holders of Certain Senior Indebtedness.................... 63
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Section 1403. Subrogation............................................................ 63
Section 1404. Obligation of Corporation Unconditional................................ 64
Section 1405. Payments on Securities Permitted....................................... 64
Section 1406. Effectuation of Subordination by Trustee............................... 65
Section 1407. Knowledge of Trustee................................................... 65
Section 1408. Trustee May Hold Senior Indebtedness................................... 65
Section 1409. Rights of Holders of Senior Indebtedness Not Impaired.................. 65
Section 1410. Trust Moneys Not Subordinated.......................................... 66
Section 1411. Article Applicable to Paying Agents.................................... 66
Section 1412. Trustee; Compensation Not Prejudiced................................... 66
ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS......................................................... 66
Section 1501. Indenture and Securities Solely Corporate Obligations.................. 66
Testimonium.......................................................................... 65
Signatures and Seals................................................................. 65
</TABLE>
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INDENTURE, dated as of __________, ______, between Sempra Energy, a
corporation duly organized and existing under the laws of the State of
California (herein called the "Corporation"), having its principal office at 101
Ash Street, San Diego, California 92101, and The Bank of New York, a New York
banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE CORPORATION
The Corporation has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
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(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Corporation
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means a day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to remain closed or (iii) a day on which the Corporate Trust Office of the
Trustee is closed for business.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Corporation by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to a Responsible Officer of
the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 101 Barclay Street, Floor 21 --
West, New York, New York 10286.
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"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series which is issued to a Depositary or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or
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herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the Chief Executive Officer, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Controller, an Assistant Controller, the Secretary or an Assistant Secretary, of
the Corporation, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1005 shall be the principal
executive, financial or accounting officer of the Corporation.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Corporation, or other counsel who shall be reasonably acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption the necessary amount of
money or money's worth has been theretofore deposited with the Trustee or
any Paying Agent (other than the Corporation) in trust or set aside and
segregated in trust by the Corporation (if the Corporation shall act as its
own Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be
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the amount of the principal thereof which would be due and payable as of such
date upon acceleration of the Maturity thereof to such date pursuant to Section
502, (B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the principal amount
of a Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in
such Clause), and (D) Securities owned by the Corporation or any other obligor
upon the Securities or any Affiliate of the Corporation or of such other
obligor, whether of record or beneficially, shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Corporation or any other obligor upon the Securities or any Affiliate
of the Corporation or of such other obligor.
"Paying Agent" means any Person authorized by the Corporation to pay the
principal of or any premium or interest on any Securities on behalf of the
Corporation.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Corporation upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
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"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
vice president, the secretary, any assistant secretary, any assistant treasurer,
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means with respect to any series of Securities, the
principal of, and premium, if any, and interest on and any other payment in
respect of indebtedness due pursuant to any of the following, whether
outstanding at the date of execution of this Indenture or thereafter incurred,
created or assumed: (a) all indebtedness of the Corporation evidenced by notes,
debentures, bonds or other securities sold by the Corporation for money or other
obligations for money borrowed, (b) all indebtedness of others of the kinds
described in the preceding clause (a) assumed by or guaranteed in any manner by
the Corporation or in effect guaranteed by the Corporation through an agreement
to purchase, contingent or otherwise, and (c) all renewals, extensions or
refundings of indebtedness of the kinds described in either of the preceding
clauses (a) and (b), unless, in the case of any particular indebtedness,
renewal, extension or refunding, the instrument creating or evidencing the same
or the assumption or guarantee of the same by its terms provides that such
indebtedness, renewal, extension or refunding is not superior in right of
payment to or is pari passu with such Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the
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case of such principal, as such date may be advanced or extended as provided
pursuant to the terms of such Security and this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Vice President," when used with respect to the Corporation or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Corporation to the Trustee to take
any action under any provision of this Indenture, the Corporation shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Corporation, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
Officers' Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date or dates
required with respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by or at
the request of the Corporation which could not have been taken had the original
document or instrument not contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered ineffective but shall be and
remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Corporation entitled to the benefits of this Indenture equally and ratably with
all other Outstanding Securities, except as aforesaid.
Section 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied
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in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Corporation. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the
Corporation, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than the signer's individual capacity,
such certificate or affidavit shall also constitute sufficient proof of the
signer's authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Corporation
in reliance thereon, whether or not notation of such action is made upon such
Security.
The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series; provided that the
Corporation may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take or revoke the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Corporation from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the
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date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Corporation, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction or to revoke
the same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Corporation's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be sent to the
Corporation in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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Section 105. Notices, Etc., to Trustee and Corporation.
-----------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Corporation shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(2) the Corporation by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Corporation addressed to it at the address of its principal office
specified in the first paragraph of this instrument, Attention: Treasurer,
or at any other address previously furnished in writing to the Trustee by
the Corporation.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles thereof.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE II.
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions,
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substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Corporation and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
SEMPRA ENERGY
_____________________
$ __________
No. _________ CUSIP No. ____
Sempra Energy, a corporation duly organized and existing under the laws of
the State of California (herein called the "Corporation," which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ______________________, or registered
assigns, the principal sum of ________ Dollars on _________________________ [if
the Security is to bear interest prior to Maturity and interest payment periods
are not extendable, insert - , and to pay interest thereon from __________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, [insert - semi-annually, quarterly, monthly or other
description of the relevant payment period] on [________, ________,] and
__________ in each year, commencing _______________, at the rate of ____% per
annum, until the principal hereof is paid or made available for payment [if
applicable, insert - , provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
___% per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the [___________________] (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor
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Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ____% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Corporation maintained for that purpose in _________________, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable, insert -
; provided, however, that at the option of the Corporation payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or by wire transfer at such
place and to such account at a banking institution in the United States as may
be designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated at Date of Authentication: SEMPRA ENERGY
By_____________________________
Attest:
__________________________________________
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of __________, ______ (herein called
the "Indenture," which term shall have the meaning assigned to it in such
instrument), between the Corporation and The Bank of New York, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture for a statement of
the respective rights, limitation of rights, duties and immunities thereunder of
the Corporation, the Trustee, the holders of the Senior Indebtedness and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert - , limited in aggregate
principal amount to $__________].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert -
(1) on ____________ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert - on or after ___________, 19__], as a whole or in part, at
the election of the Corporation, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [if applicable, insert -
on or before _________________, ___%, and if redeemed] during the 12-month
period beginning _________ of the years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
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<PAGE>
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ______ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after _____________], as a whole or in part, at the
election of the Corporation, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-
month period beginning ________ of the years indicated,
Redemption Price Redemption Price for
for Redemption Otherwise
Redemption Through Than
Operation of the Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------------- -----------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Corporation may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Corporation
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on __________ in each year beginning with the year _______ and ending
with the year ______ of [if applicable, insert - not less than $___________
("mandatory sinking fund") and not more than] $____________ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Corporation otherwise than through [if applicable, insert -
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
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<PAGE>
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The indebtedness represented by the Securities of this series is, to the
extent and in a manner set forth in the Indenture, expressly subordinated in
right of payment to the prior payment in full of all Senior Indebtedness, as
defined in the Indenture, with respect to this series, and this Security is
issued subject to such provisions, and each Holder of this Security, by
acceptance thereof, agrees to and shall be bound by such provisions and
authorizes and directs the Trustee in his, her or its behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in the Indenture and appoints the Trustee his, her or its attorney-in-fact, as
the case may be, for any and all such purposes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of all series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
of all series at the time Outstanding affected thereby (voting as one class).
The Indenture contains provisions permitting the Holders of not less than a
majority in principal amount of the Securities of all series at the time
Outstanding with respect to which a default under the Indenture shall have
occurred and be continuing (voting as one class), on behalf of the Holders of
the Securities of all such series, to waive, with certain exceptions, such past
default with respect to all such series and its consequences. The Indenture
also permits the Holders of not less than a majority in principal amount of the
Securities of each series at the time
17
<PAGE>
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Corporation with certain provisions of the Indenture. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
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<PAGE>
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
------------------------------------
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: _____________________ The Bank of New York,
As Trustee
By:____________________________
Authorized Signatory
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ARTICLE III.
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series with the Securities
issued hereunder being expressly subordinated in right of payment, to the extent
and in the manner set forth in Article Fourteen, to all Senior Indebtedness of
the Corporation. There shall be established in or pursuant to a Board
Resolution and, subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable or the method by which such date shall be determined and
the right, if any, to shorten or extend the date on which the principal of
any Securities of the series is payable and the conditions to any such
change;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined; the date or dates from which any such interest shall accrue;
the Interest Payment Dates on which any such interest shall be payable; the
manner (if any) of determination of such Interest Payment Dates; and the
Regular Record Date, if any, for any such interest payable on any Interest
Payment Date;
(6) the right, if any, to extend the interest payment periods and the
terms of such extension or extensions;
20
<PAGE>
(7) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable and whether, if
acceptable to the Trustee, any principal of such Securities shall be
payable without presentation or surrender thereof;
(8) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part, at the
option of the Corporation and, if other than by a Board Resolution, the
manner in which any election by the Corporation to redeem the Securities
shall be evidenced;
(9) the obligation, if any, of the Corporation to redeem or purchase
any Securities of the series pursuant to any sinking fund, purchase fund or
analogous provisions or at the option of the Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(12) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Corporation or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal
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amount thereof which shall be due and payable upon any Maturity other than
the Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in
which such amount deemed to be the principal amount shall be determined);
(16) if either or both of Sections 1302 and 1303 do not apply to any
Securities of the series;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositary or Depositaries for such
Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in
Section 204 and any circumstances in addition to or in lieu of those set
forth in Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) any addition, modification or deletion of any Events of Default
or covenants provided with respect to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant
to Section 502;
(19) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(20) the subordination of the Securities of such series to any other
indebtedness of the Corporation, including, without limitation, the
Securities of any other series; and
(21) any other terms of the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Corporation and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms or the manner of determining the terms of
the series.
With respect to Securities of a series offered in a Periodic Offering, the
Board Resolution (or action taken pursuant thereto), Officers' Certificate or
supplemental indenture referred to above may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company
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Order or that such terms shall be determined by the Corporation in accordance
with other procedures specified in a Company Order as contemplated by the third
paragraph of Section 303.
Notwithstanding Section 301(2) herein and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable only in fully registered
form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Corporation by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series executed by the
Corporation to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities, provided, however, that in the case of Securities offered in a
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Corporation or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or terms of the Securities of the series
have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
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(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity with the provisions
of this Indenture, subject, in the case of Securities of a series offered
in a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Corporation in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Corporation enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the Trustee in good faith shall
determine that the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Corporation of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this
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Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Corporation in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Corporation shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Corporation shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in any other
office or agency of the Corporation in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Corporation shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Corporation in a Place of Payment for that series,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Corporation shall execute, and the
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Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Corporation, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1106 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed, the Corporation shall not be required (A) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption and ending at the close of business on
the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary has notified the
Corporation that it is unwilling or unable to continue as Depositary for
such Global Security and a successor Depositary has not been appointed by
the Corporation within 90 days of receipt by the Corporation of such
notification, (B) if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act at a time when the Depositary is
required to be so registered to act as such Depositary and no successor
Depositary shall have been appointed by the Corporation within 90 days
after it became aware of such cessation, or (C) there shall exist such
26
<PAGE>
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
Notwithstanding the foregoing, the Corporation may at any time in its sole
discretion determine that Securities issued in the form of a Global
Security shall no longer be represented in whole or in part by such Global
Security, and the Trustee, upon receipt of a Company Order therefor, shall
authenticate and deliver definitive Securities in exchange in whole or in
part for such Global Security.
(3) Subject to Clause (2) above, any exchange or transfer of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for or upon transfer of a Global Security or
any portion thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1106 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Corporation
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Corporation or the Trustee that such Security has been acquired by a bona fide
purchaser, the Corporation shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax, fee, assessment or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and its agents and
counsel) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable
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<PAGE>
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Corporation, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Corporation
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Corporation shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Corporation of
such Special Record Date and, in the name and at the expense of the
Corporation, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each Holder of
Securities of such series in the manner set forth in Section 106, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of
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<PAGE>
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange, if any, on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Corporation, the Trustee nor any agent of the Corporation or the Trustee shall
be affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Corporation may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Corporation may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Corporation has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order; provided, however, that the Trustee shall not be required to destroy such
canceled Securities.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
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Section 311. CUSIP Numbers.
-------------
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Corporation and
thereafter repaid to the Corporation or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Corporation,
and the Corporation, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose (i) money in
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an amount, (ii) Government Obligations (as defined in Section 1304)
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than the due date of any payment, money in an amount, or (iii) a
combination thereof, sufficient, in the case of (ii) or (iii), in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee to pay and discharge, the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Corporation has paid or caused to be paid all other sums
payable hereunder by the Corporation; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Trustee under Section 607, the obligations
of the Corporation to any Authenticating Agent under Section 614 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V.
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is inapplicable to a particular series or is specifically deleted or
modified in the Board Resolution (or action taken pursuant thereto), Officers'
Certificate or
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supplemental indenture under which such series of Securities is issued or has
been deleted or modified in an indenture supplemental hereto:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 60 days; provided, however, that if the Corporation is
permitted by the terms of the Securities of such series to defer the
payment in question, the date on which such payment is due and payable
shall be the date on which the Corporation is required to make payment
following such deferral, if such deferral has been elected pursuant to the
terms of the Securities; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the making of any sinking fund payment, when and as due
by the terms of a Security of that series, and continuance of such default
for a period of 60 days; or
(4) default in the performance, or breach, of any covenant of the
Corporation in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Corporation by the Trustee or to
the Corporation and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder, unless the
Trustee, or the Trustee and the Holders of a principal amount of Securities
of such series not less than the principal amount of Securities the Holders
of which gave such notice, as the case may be, shall agree in writing to an
extension of such period prior to its expiration; provided, however, that
the Trustee, or the Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action is initiated by
the Corporation within such period and is being diligently pursued; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Corporation in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Corporation a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Corporation under any applicable
federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Corporation or of any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the continuance of any such
decree or
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order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
(6) the commencement by the Corporation of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Corporation in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Corporation or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
authorization of any such action by the Board of Directors; or
(7) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Corporation (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Event of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and such
declaration and its consequences shall, without further act, be deemed to have
been rescinded and annulled, if
(1) the Corporation has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration
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and any interest thereon at the rate or rates prescribed therefor in
such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Corporation covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 60 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Corporation (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by
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intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
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Third: To the payment of the balance, if any, to the Corporation or
any other Person or Persons legally entitled thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
- --------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case,
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<PAGE>
subject to any determination in such proceeding, the Corporation, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control By Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability.
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Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all series with respect to which any default under the
Indenture shall have occurred and be continuing (voting as one class) may, on
behalf of the Holders of all Securities of all such series, waive such past
default under the Indenture and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of the series affected.
Upon any such waiver, such default shall cease to exist and be deemed not
to have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Corporation or the Trustee.
Section 515. Waiver of Stay or Extension Laws.
--------------------------------
The Corporation covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Corporation (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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<PAGE>
ARTICLE VI.
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Corporation mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Corporation;
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<PAGE>
(4) the Trustee may consult with counsel of its selection and the
written advice or Opinion of Counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon. Such counsel may be counsel to the Corporation or any of its
Affiliates, and may include any of its employees;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, at reasonable times previously notified to the
Corporation, to examine the relevant books, records and premises of the
Corporation, personally or by agent or attorney at the sole expense of the
Corporation and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Corporation.
Section 607. Compensation and Reimbursement.
------------------------------
The Corporation agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed upon from time to time in writing between the Corporation and the
Trustee for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to fully indemnify the Trustee for, and to hold it harmless
against, any and all loss, damage, claim liability or expense including
taxes (other than taxes based on the income of the Trustee) incurred
without negligence, willful misconduct or bad faith on its part, arising
out of or in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all property and
funds held by it hereunder for any amount owing it or any predecessor Trustee
pursuant to this Section 607, except with respect to funds held in trust for the
benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
41
<PAGE>
To the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Corporation. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Corporation, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Corporation. Upon such removal, the Corporation may petition, at the expense of
the Corporation, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Corporation or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Corporation or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or
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any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Corporation by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Corporation, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Corporation and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Corporation. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Corporation or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Corporation shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Corporation or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the
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<PAGE>
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Corporation, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any successor Trustee,
such retiring Trustee shall upon payment of all damages due it, its agents and
counsel duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates.
Upon request of any such successor Trustee, the Corporation shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case
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<PAGE>
any Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 613. Preferential Collection of Claims Against Corporation.
-----------------------------------------------------
If and when the Trustee shall be or become a creditor of the Corporation
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Corporation (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents acceptable to the
Corporation with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided that such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the
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Corporation. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Corporation and shall give notice of such appointment in the manner provided in
Section 106 to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Corporation agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: The Bank of New York,
------------- As Trustee
By:_____________________________________
As Authenticating Agent
By:_____________________________________
Authorized Signatory
Section 615. Trustee's Application for Instructions from the Corporation.
-----------------------------------------------------------
Any application by the Trustee for written instructions from the
Corporation may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable to the Corporation for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
corporation actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders.
-------------------------------------------------------------
The Corporation will furnish or cause to be furnished to the Trustee
(1) 15 days after each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of such Regular Record Date, and
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(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Corporation of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Corporation and the Trustee that neither the Corporation nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture, deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Corporation. The
Corporation will promptly notify the Trustee when any Securities are listed on
any stock exchange.
Section 704. Reports by Corporation.
----------------------
The Corporation shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Corporation May Consolidate, Etc., on Certain Terms.
---------------------------------------------------
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Corporation with or into any other
Person or Persons (whether or not affiliated with the Corporation), or
successive consolidations or mergers in which the Corporation or its successor
or successors shall be a party or parties, or shall prevent any conveyance or
transfer of the properties and assets of the Corporation as an entirety or
substantially as an entirety to any other Person (whether or not affiliated with
the Corporation) lawfully entitled to acquire the same; provided, however, and
the Corporation hereby covenants and agrees, that upon any such consolidation,
merger, conveyance or transfer, (i) the due and punctual payment of the
principal of and premium, if any, and interest on all of the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Corporation, shall be expressly assumed, by indenture supplemental hereto, in
form reasonably satisfactory to the Trustee, executed and delivered to the
Trustee by the Person (if other than the Corporation) formed by such
consolidation, or into which the Corporation shall have been merged, or by the
Person which shall have acquired such properties and assets, and (ii) the
Corporation shall deliver to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, conveyance or transfer
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Corporation with, or merger of the
Corporation into, any other Person or any conveyance or transfer of the
properties and assets of the Corporation as an entirety or substantially as an
entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Corporation is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Corporation under this Indenture with the
same effect as if such successor Person had been named as the Corporation
herein, and thereafter the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Corporation, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more
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indentures supplemental hereto, in form reasonably satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Corporation
and the assumption by any such successor of the covenants of the
Corporation herein and in the Securities; or
(2) to add to the covenants of the Corporation for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Corporation; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
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Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture (voting as one class), by Act of said Holders delivered to the
Corporation and the Trustee, the Corporation, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture, or modifying in any manner the rights of the Holders of
Securities under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or change the coin or currency in which any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1006, or the
deletion of this proviso, in accordance with the requirements of Sections
611 and 901(8). A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Corporation, to any such supplemental indenture
may be prepared and executed by the Corporation and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
Section 907. Subordination Unimpaired.
------------------------
This Indenture may not be amended to alter the subordination of any of the
Outstanding Securities without the written consent of each holder of Senior
Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
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Section 1002. Maintenance of Office or Agency.
-------------------------------
The Corporation will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Corporation in respect of the Securities of that series and this
Indenture may be served. The Corporation will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Corporation shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Corporation hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Corporation may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Corporation of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such
purposes. The Corporation will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Corporation shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Corporation will promptly notify the Trustee of its action or
failure so to act.
The Corporation will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Corporation (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
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The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust hereunder by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Corporation, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Corporation on Company Request, or (if then held by the Corporation)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Corporation for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Corporation as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Corporation cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Corporation.
Section 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Corporation will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises.
Section 1005. Statement by Officers as to Default.
-----------------------------------
The Corporation will deliver to the Trustee, on or before October 15 of
each calendar year or on or before such other day in each calendar year as the
Corporation and the Trustee may from time to time agree upon, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Corporation is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Corporation
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 1006. Waiver of Certain Covenants.
---------------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Corporation may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(19), 901(2)
or 901(7) for the benefit of the Holders of such series if
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<PAGE>
before the time for such compliance the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Corporation and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Corporation to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Corporation, the Corporation shall, at least 45 days prior to the Redemption
Date fixed by the Corporation (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of any redemption of
Securities (A) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (B)
pursuant to an election of the Corporation which is subject to a condition
specified in the terms of such Securities or elsewhere in this Indenture, the
Corporation shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series; provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the
54
<PAGE>
Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series and of a
specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series and
of a specified tenor consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
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<PAGE>
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) such other matters as the Corporation shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any redemption of Securities at the election
of the Corporation, unless, upon the giving of notice of such redemption,
Defeasance shall have been effected with respect to such Securities pursuant to
Section 1302, such notice may state that such redemption shall be conditional
upon the receipt by the Trustee or the Paying Agent(s) for such Securities, on
or prior to the date fixed for such redemption, of money sufficient to pay the
principal of and any premium and interest on such Securities and that if such
money shall not have been so received such notice shall be of no force or effect
and the Corporation shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made, and the Trustee or Paying Agent(s) for the
Securities otherwise to have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at the election of the
Corporation, and any notice of non-satisfaction of redemption as aforesaid,
shall be given by the Corporation or, at the Corporation's request, by the
Trustee in the name and at the expense of the Corporation. Subject to the
preceding paragraph, any such notice of redemption shall be irrevocable.
Section 1105. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, and the conditions, if
any, set forth in such notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless,
in the case of an unconditional notice of redemption, the Corporation shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
said notice, such Security or portion thereof shall be paid by the Corporation
at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that no such surrender shall be a condition
to such payment if so specified as contemplated by Section 301 with respect to
such Security, and provided further that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
56
<PAGE>
Section 1106. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Corporation or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Corporation and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Corporation shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE XII.
SINKING FUNDS
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Corporation (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Corporation pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
57
<PAGE>
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Corporation will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and stating the basis for such credit and that such Securities have
not been previously so credited and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1105 and 1106.
ARTICLE XIII.
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Applicability of Article.
------------------------
Unless, pursuant to Section 301, provision is made that either or both of
(A) defeasance of any Securities or any series of Securities under Section 1302
and (B) covenant defeasance of any Securities or any series of Securities under
Section 1303 shall not apply to such Securities of a series, then the provisions
of either or both of Sections 1302 and Section 1303, as the case may be,
together with Sections 1304 and 1305, shall be applicable to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article.
Section 1302. Defeasance and Discharge.
------------------------
The Corporation may cause itself to be discharged from its obligations with
respect to any Securities or any series of Securities on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Corporation
shall be deemed to have paid and discharged the entire indebtedness represented
by such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Corporation, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when payments are due, (2) the
Corporation's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003 and with respect to the Trustee under Section 607, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(4) this Article. Subject to compliance with this Article, Defeasance with
respect to any Securities or any series of Securities by the Corporation is
permitted under this Section 1302 notwithstanding the prior exercise by the
Corporation of its rights under Section 1303 with
58
<PAGE>
respect to such Securities. Following a Defeasance, payment of such Securities
may not be accelerated because of an Event of Default.
Section 1303. Covenant Defeasance.
-------------------
The Corporation may cause itself to be released from its obligations under
any covenants provided pursuant to Section 301(19), 901(2), 901(6) or 901(7)
with respect to any Securities or any series of Securities for the benefit of
the Holders of such Securities and the occurrence of any event specified in
Sections 501(4) (with respect to any such covenants provided pursuant to Section
301(19), 901(2), 901(6) or 901(7)) or 501(7) shall be deemed not to be or result
in an Event of Default with respect to such Securities as provided in this
Section, in each case on and after the date the conditions set forth in Section
1304 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
the Corporation may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Corporation shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of
any payment, money in an amount, or (C) a combination thereof, sufficient,
in the case of (B) or (C), in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities
or on any Redemption Date established pursuant to Clause (3) below, in
accordance with the terms of this Indenture and such Securities. As used
herein, "Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America or the government which
issued the foreign currency in which such Securities are payable, for the
payment of which its full faith and credit is pledged or (ii) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which
issued the foreign currency in which such Securities are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which,
in either
59
<PAGE>
case (i) or (ii), is not callable or redeemable at the option of the issuer
thereof, and (y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with respect to any
Government Obligation which is specified in clause (x) above and held by
such bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any
Government Obligation which is so specified and held, provided that (except
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the Government Obligation or
the specific payment of principal or interest evidenced by such depositary
receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(5) and
(6), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
(3) If the Securities are to be redeemed prior to Stated Maturity
(other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made.
(4) The Corporation shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
---------------------------------------------------------------
Miscellaneous Provisions.
------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Corporation acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal and any premium and interest,
but money so held in trust need not be segregated from other funds except to the
extent required by law.
The Corporation shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1304 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon Company Request any
money or Government
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<PAGE>
Obligations held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.
ARTICLE XIV.
SUBORDINATION
Section 1401. Securities Subordinated to Senior Indebtedness.
----------------------------------------------
Except as otherwise specified as contemplated by Section 301 for any series
of Securities, the Corporation covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Securities of any series and the payment of the
principal of and any premium or interest on each and all of the Securities of
each series is subordinate, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness. Senior Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of these subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness.
In the event (a) of any payment by, or distribution of assets of, the
Corporation of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, or (b) subject to the provisions of Section
1402 that (i) a default shall have occurred and be continuing with respect to
the payment of principal, interest or any other monetary amounts due and payable
on any Senior Indebtedness and such default shall have continued beyond the
period of grace, if any, specified in the instrument evidencing such Senior
Indebtedness (and the Trustee shall have received written notice thereof from
the Corporation or one or more holders of Senior Indebtedness or their
representative or representatives or the trustee or trustees under any indenture
pursuant to which any such Senior Indebtedness may have been issued), or (ii)
the maturity of any Senior Indebtedness shall have been accelerated because of a
default in respect of such Senior Indebtedness (and the Trustee shall have
received written notice thereof from the Corporation or one or more holders of
Senior Indebtedness or their representative or representatives or the trustee or
trustees under any indenture pursuant to which any such Senior Indebtedness may
have been issued), then:
(i) the holders of all Senior Indebtedness shall first be entitled to
receive, in the case of (a) above, payment of all amounts due or to become
due upon all Senior Indebtedness and, in the case of subclauses (i) and
(ii) of clause (b) above, payment of all amounts due thereon, or provision
shall be made for such payment in money or money's worth, before the
Holders of any of the Securities are entitled to receive any payment on
account of the principal of or any premium or interest on the indebtedness
evidenced by
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<PAGE>
the Securities, including, without limitation, any payments made pursuant
to Article Eleven or Article Twelve;
(ii) any payment by, or distribution of assets of, the Corporation of
any kind or character, whether in cash, property or securities, to which
the Holders of any of the Securities would be entitled except for the
provisions of this Article, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of the Corporation being subordinated to the payment of such
Securities, shall be paid or delivered by the Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of such Senior Indebtedness
or their representative or representatives or to the trustee or trustees
under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of such Senior Indebtedness
held or represented by each, to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the holders
of such Senior Indebtedness, before any payment or distribution is made to
the Holders of the indebtedness evidenced by such Securities; and
(iii) in the event that, notwithstanding the foregoing, any payment
by, or distribution of assets of, the Corporation of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other indebtedness of the Corporation being subordinated to the
payment of such Securities, in respect of principal of or any premium or
interest on any of the Securities or in connection with the repurchase by
the Corporation of any of the Securities, shall be received by the Trustee
or the Holders of any of the Securities when such payment or distribution
is prohibited pursuant to this Section, such payment or distribution shall
be paid over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any such Senior
Indebtedness may have been issued, ratably as aforesaid, for application to
the payment of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after giving effect to
any concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 90th day following the
date of deposit of money or Government Obligations pursuant to Section 1304
(provided all other conditions set out in such Section shall have been
satisfied) the funds so deposited and any interest thereon will not be subject
to any rights of holders of Senior Indebtedness including, without limitation,
those arising under this Article.
For purposes of this Article Fourteen, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Corporation as
reorganized or readjusted, or securities of the Corporation or any other Person
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article with respect to
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<PAGE>
the Securities to the payment of all Senior Indebtedness which may at the time
be outstanding; provided that (i) the indebtedness or guarantee of indebtedness,
as the case may be, that constitutes Senior Indebtedness is assumed by the
Person, if any, resulting from any such reorganization or readjustment, and (ii)
the rights of the holders of the Senior Indebtedness are not, without the
consent of each such holder adversely affected thereby, altered by such
reorganization or readjustment. The consolidation of the Corporation with, or
the merger of the Corporation into, another Person or the liquidation or
dissolution of the Corporation following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another Person upon
the terms and conditions provided for in Article Eight hereof shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section if such other Person shall, as part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Eight hereof.
Section 1402. Disputes with Holders of Certain Senior Indebtedness.
----------------------------------------------------
Any failure by the Corporation to make any payment on or perform any other
obligation under Senior Indebtedness, other than any indebtedness incurred by
the Corporation or assumed or guaranteed, directly or indirectly, by the
Corporation for money borrowed (or any deferral, renewal, extension or refunding
thereof) or any indebtedness or obligation as to which the provisions of this
Section shall have been waived by the Corporation in the instrument or
instruments by which the Corporation incurred, assumed, guaranteed or otherwise
created such indebtedness or obligation, shall not be deemed a default or event
of default under Section 1401(b) if (i) the Corporation shall be disputing its
obligation to make such payment or perform such obligation and (ii) either (A)
no final judgment relating to such dispute shall have been issued against the
Corporation which is in full force and effect and is not subject to further
review, including a judgment that has become final by reason of the expiration
of the time within which a party may seek further appeal or review, and (B) in
the event of a judgment that is subject to further review or appeal has been
issued, the Corporation shall in good faith be prosecuting an appeal or other
proceeding for review and a stay of execution shall have been obtained pending
such appeal or review.
Section 1403. Subrogation.
-----------
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated (equally and ratably with the holders of all
obligations of the Corporation which by their express terms are subordinated to
Senior Indebtedness of the Corporation to the same extent as the Securities are
subordinated and which are entitled to like rights of subrogation) to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Corporation applicable to the Senior
Indebtedness until all amounts owing on the Securities shall be paid in full,
and as between the Corporation, its creditors other than holders of such Senior
Indebtedness and the Holders, no such payment or distribution made to the
holders of Senior Indebtedness by virtue of this Article that otherwise would
have been made to the Holders shall be deemed to be a payment by the Corporation
on account of such Senior Indebtedness, it being understood that the provisions
of
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<PAGE>
this Article are and are intended solely for the purpose of defining the
relative rights of the Holders, on the one hand, and the holders of Senior
Indebtedness, on the other hand.
Section 1404. Obligation of Corporation Unconditional.
---------------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Corporation, its
creditors other than the holders of Senior Indebtedness and the Holders, the
obligation of the Corporation, which is absolute and unconditional, to pay to
the Holders the principal of and any premium or interest on the Securities as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders and
creditors of the Corporation other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities of the
Corporation received upon the exercise of any such remedy.
Upon payment or distribution of assets of the Corporation referred to in
this Article, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any such
dissolution, winding-up, liquidation or reorganization proceeding affecting the
affairs of the Corporation is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee
or agent or other person making any payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Corporation, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee or
representative on behalf of any such holder or holders. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and, if
such evidence is not furnished, the Trustee may defer payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 1405. Payments on Securities Permitted.
--------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities shall affect the obligations of the Corporation to make, or prevent
the Corporation from making,
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<PAGE>
payment of the principal of or any premium or interest on the Securities in
accordance with the provisions hereof and thereof, except as otherwise provided
in this Article.
Section 1406. Effectuation of Subordination by Trustee.
----------------------------------------
Each Holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee in his, her or its behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his, her or its attorney-in-fact, as the case
may be, for any and all such purposes.
Section 1407. Knowledge of Trustee.
--------------------
The Corporation shall give prompt written notice to the Trustee of any fact
known to the Corporation which would prohibit the making of any payment of
moneys to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article. Notwithstanding the provisions of this Article or
any other provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of moneys to or by the Trustee, or the taking of any other action by the
Trustee, unless and until the Trustee shall have received written notice thereof
mailed or delivered to the Trustee at its Corporate Trust Office from the
Corporation, any Holder, any paying agent or the holder or representative of any
Senior Indebtedness; provided that if at least two Business Days prior to the
date upon which by the terms hereof any such moneys may become payable for any
purpose (including, without limitation, the payment of the principal or any
premium or interest on any Security) the Trustee shall not have received with
respect to such moneys the notice provided for in this Section, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such moneys and to apply the same to the purpose
for which they were received and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to or on or
after such date.
Section 1408. Trustee May Hold Senior Indebtedness.
------------------------------------
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness at the time
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
Section 1409. Rights of Holders of Senior Indebtedness Not Impaired.
-----------------------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Corporation or by
any noncompliance by the Corporation with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (i) the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture; (ii) the Trustee
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shall not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture; (iii) no implied covenants or
obligations shall be read into this Indenture against the Trustee; and (iv) the
Trustee shall not be deemed to be a fiduciary as to such holders.
Section 1410. Trust Moneys Not Subordinated.
-----------------------------
Notwithstanding anything contained herein to the contrary, payments from
money or Government Obligations held in trust under Article Four or Article
Thirteen by the Trustee for the payment of principal of and any premium or
interest on the Securities of any series shall not be subordinated to the prior
payment of any Senior Indebtedness of the Corporation or subject to the
restrictions set forth in this Article and none of the Holders shall be
obligated to pay over any such amount to the Corporation or any holder of Senior
Indebtedness or any other creditor of the Corporation.
Section 1411. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any paying agent other than the Trustee shall have been
appointed by the Corporation and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such paying agent within its
meaning as fully for all intents and purposes as if such paying agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1407 and 1408 shall not apply to the Corporation if it acts as its
own paying agent.
Section 1412. Trustee; Compensation Not Prejudiced.
------------------------------------
Nothing in this Article shall apply to claims of, or payments to, the
Trustee pursuant to Section 607.
ARTICLE XV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1501. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
SEMPRA ENERGY
By /S/
--------------------------------
Attest:
/S/
- -------------------------------
The Bank of New York,
as Trustee
By /S/
-------------------------------
Authorized Signatory
Attest:
/S/
- -------------------------------
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Exhibit 4.3
SEMPRA ENERGY HOLDINGS,
AND
SEMPRA ENERGY,
as Guarantor
TO
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
____________________________________________
Senior Indenture
Dated as of _________, ______
____________________________________________
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------------- -----------------
<S> <C>
Section 310(a)(1).................................................................................. 609
(a)(2)..................................................................................... 609
(a)(3)..................................................................................... Not Applicable
(a)(4)..................................................................................... Not Applicable
(b)........................................................................................ 608
610
Section 311(a)..................................................................................... 613
(b)........................................................................................ 613
Section 312(a)..................................................................................... 701
702
(b)........................................................................................ 702
(c)........................................................................................ 702
Section 313(a)..................................................................................... 703
(b)........................................................................................ 703
(c)........................................................................................ 703
(d)........................................................................................ 703
Section 314(a)..................................................................................... 704
(a)(4)..................................................................................... 101
1005
(b)........................................................................................ Not Applicable
(c)(1)..................................................................................... 102
(c)(2)..................................................................................... 102
(c)(3)..................................................................................... Not Applicable
(d)........................................................................................ Not Applicable
(e)........................................................................................ 102
Section 315(a)..................................................................................... 601
(b)........................................................................................ 602
(c)........................................................................................ 601
(d)........................................................................................ 601
(e)........................................................................................ 514
Section 316(a)..................................................................................... 101
(a)(1)(A).................................................................................. 502
512
(a)(1)(B).................................................................................. 513
(a)(2)..................................................................................... Not Applicable
(b)........................................................................................ 508
(c)........................................................................................ 104
Section 317(a)(1).................................................................................. 503
(a)(2)..................................................................................... 504
(b)........................................................................................ 1003
Section 318(a)..................................................................................... 107
- -------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Parties............................................................................................... 1
Recitals of the Corporation........................................................................... 1
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................ 1
Section 101. Definitions............................................................................ 1
Section 102. Compliance Certificates and Opinions................................................... 7
Section 103. Form of Documents Delivered to Trustee................................................. 8
Section 104. Acts of Holders; Record Dates.......................................................... 9
Section 105. Notices, Etc., to Trustee, Corporation and Guarantor................................... 11
Section 106. Notice to Holders; Waiver.............................................................. 12
Section 107. Conflict with Trust Indenture Act...................................................... 12
Section 108. Effect of Headings and Table of Contents............................................... 12
Section 109. Successors and Assigns................................................................. 12
Section 110. Separability Clause.................................................................... 13
Section 111. Benefits of Indenture.................................................................. 13
Section 112. Governing Law.......................................................................... 13
Section 113. Legal Holidays......................................................................... 13
ARTICLE II. SECURITY FORMS......................................................................... 13
Section 201. Forms Generally........................................................................ 13
Section 202. Form of Face of Security............................................................... 14
Section 203. Form of Reverse of Security............................................................ 16
Section 204. Form of Legend for Global Securities................................................... 20
Section 205. Form of Trustee's Certificate of Authentication........................................ 20
ARTICLE III. THE SECURITIES......................................................................... 20
Section 301. Amount Unlimited; Issuable in Series................................................... 20
Section 302. Denominations.......................................................................... 24
Section 303. Execution, Authentication, Delivery and Dating......................................... 24
Section 304. Temporary Securities................................................................... 26
Section 305. Registration, Registration of Transfer and Exchange.................................... 26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities....................................... 28
Section 307. Payment of Interest; Interest Rights Preserved......................................... 29
Section 308. Persons Deemed Owners.................................................................. 30
Section 309. Cancellation........................................................................... 31
Section 310. Computation of Interest................................................................ 31
Section 311. CUSIP Numbers.......................................................................... 31
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ARTICLE IV. SATISFACTION AND DISCHARGE............................................................. 32
Section 401. Satisfaction and Discharge of Indenture................................................ 32
Section 402. Application of Trust Money............................................................. 33
ARTICLE V. REMEDIES............................................................................... 33
Section 501. Events of Default...................................................................... 33
Section 502. Acceleration of Maturity; Rescission and Annulment..................................... 35
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee........................ 36
Section 504. Trustee May File Proofs of Claim....................................................... 37
Section 505. Trustee May Enforce Claims Without Possession of Securities............................ 37
Section 506. Application of Money Collected......................................................... 38
Section 507. Limitation on Suits.................................................................... 38
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................................................. 39
Section 509. Restoration of Rights and Remedies..................................................... 39
Section 510. Rights and Remedies Cumulative......................................................... 39
Section 511. Delay or Omission Not Waiver........................................................... 39
Section 512. Control By Holders..................................................................... 40
Section 513. Waiver of Past Defaults................................................................ 40
Section 514. Undertaking for Costs.................................................................. 41
Section 515. Waiver of Stay or Extension Laws....................................................... 41
ARTICLE VI. THE TRUSTEE............................................................................ 41
Section 601. Certain Duties and Responsibilities.................................................... 41
Section 602. Notice of Defaults..................................................................... 42
Section 603. Certain Rights of Trustee.............................................................. 42
Section 604. Not Responsible for Recitals or Issuance of Securities................................. 43
Section 605. May Hold Securities.................................................................... 43
Section 606. Money Held in Trust.................................................................... 43
Section 607. Compensation and Reimbursement......................................................... 44
Section 608. Conflicting Interests.................................................................. 44
Section 609. Corporate Trustee Required; Eligibility................................................ 45
Section 610. Resignation and Removal; Appointment of Successor...................................... 45
Section 611. Acceptance of Appointment by Successor................................................. 46
Section 612. Merger, Conversion, Consolidation or Succession to Business............................ 48
Section 613. Preferential Collection of Claims Against Corporation.................................. 48
Section 614. Appointment of Authenticating Agent.................................................... 48
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION.................................. 50
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders.......................... 50
Section 702. Preservation of Information; Communications to Holders................................. 50
Section 703. Reports by Trustee..................................................................... 51
Section 704. Reports by Corporation and Guarantor................................................... 51
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ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER......................................... 51
Section 801. Corporation or Guarantor May Consolidate, Etc., on Certain Terms...................... 51
Section 802. Successor Substituted................................................................. 52
ARTICLE IX. SUPPLEMENTAL INDENTURES............................................................... 52
Section 901. Supplemental Indentures Without Consent of Holders.................................... 52
Section 902. Supplemental Indentures With Consent of Holders....................................... 54
Section 903. Execution of Supplemental Indentures.................................................. 55
Section 904. Effect of Supplemental Indentures..................................................... 55
Section 905. Conformity with Trust Indenture Act................................................... 55
Section 906. Reference in Securities to Supplemental Indentures.................................... 55
ARTICLE X. COVENANTS............................................................................. 56
Section 1001. Payment of Principal, Premium and Interest............................................ 56
Section 1002. Maintenance of Office or Agency....................................................... 56
Section 1003. Money for Securities Payments to Be Held in Trust..................................... 56
Section 1004. Corporate Existence................................................................... 57
Section 1005. Statement by Officers as to Default................................................... 58
Section 1006. Waiver of Certain Covenants........................................................... 58
ARTICLE XI. REDEMPTION OF SECURITIES.............................................................. 58
Section 1101. Applicability of Article.............................................................. 58
Section 1102. Election to Redeem; Notice to Trustee................................................. 59
Section 1103. Selection by Trustee of Securities to Be Redeemed..................................... 59
Section 1104. Notice of Redemption.................................................................. 60
Section 1105. Securities Payable on Redemption Date................................................. 61
Section 1106. Securities Redeemed in Part........................................................... 61
ARTICLE XII. SINKING FUNDS......................................................................... 62
Section 1201. Applicability of Article.............................................................. 62
Section 1202. Satisfaction of Sinking Fund Payments with Securities................................. 62
Section 1203. Redemption of Securities for Sinking Fund............................................. 62
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE.................................................... 63
Section 1301. Applicability of Article.............................................................. 63
Section 1302. Defeasance and Discharge.............................................................. 63
Section 1303. Covenant Defeasance................................................................... 64
Section 1304. Conditions to Defeasance or Covenant Defeasance....................................... 64
Section 1305. Deposited Money and Government Obligations to Be Held
in Trust; Miscellaneous Provisions................................................... 65
ARTICLE XIV. GUARANTEE............................................................................. 66
Section 1401. Guarantee............................................................................. 66
Section 1402. Execution and Delivery of Guarantee................................................... 68
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ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.......................... 68
Section 1501. Indenture and Securities Solely Corporate Obligations................................. 68
Testimonium........................................................................................... 63
Signatures and Seals.................................................................................. 63
</TABLE>
v
<PAGE>
INDENTURE, dated as of ________, ______, among Sempra Energy Holdings, a
corporation duly organized and existing under the laws of the State of
California (herein called the "Corporation"), having its principal office at 101
Ash Street, San Diego, California 92101, Sempra Energy, a corporation duly
organized and existing under the laws of the State of California (herein called
the "Guarantor") having its principal office at 101 Ash Street, San Diego,
California 92101, and U. S. Bank Trust National Association, a national banking
corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE CORPORATION
The Corporation has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
RECITALS OF THE GUARANTOR
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantee of the Securities as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
<PAGE>
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Corporation
or the Guarantor, as the case requires, or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation or the Guarantor (as the case may
be) to have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means a day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to remain closed or (iii) a day on which the Corporate Trust Office of the
Trustee is closed for business.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor Person.
2
<PAGE>
"Company Request" or "Company Order" means a written request or order
signed in the name of the Corporation by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 100 Wall Street, Suite 1600,
New York, New York, 1005, Attn: Corporate Trust Services.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series which is issued to a Depositary or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
"Guarantee" means any guarantee of the Guarantor endorsed on a Security
authenticated and delivered pursuant to this Indenture and shall include the
guarantee set forth in Section 1401.
"Guarantor" means the Person named as "Guarantor" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Guarantor" shall
include such successor Person.
"Guarantor Order" or "Guarantor Request" mean, respectively, a written
order or request, as the case may be, signed in the name of the Guarantor by its
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
3
<PAGE>
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate" means a certificate signed by either the Chairman
of the Board, Chief Executive Officer, the Vice Chairman of the Board, the
President, or a Vice President, and also signed by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary, or an
Assistant Secretary, of the Corporation or the Guarantor, as the case requires,
and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1005 shall be the principal executive,
financial or accounting officer of the Corporation.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Corporation or the Guarantor, as the case requires, or other counsel who
shall be reasonably acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
4
<PAGE>
(2) Securities for whose payment or redemption the necessary amount of
money or money's worth has been theretofore deposited with the Trustee or
any Paying Agent (other than the Corporation) in trust or set aside and
segregated in trust by the Corporation (if the Corporation shall act as its
own Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Corporation proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Corporation or any other obligor upon the Securities or any
Affiliate of the Corporation or of such other obligor, whether of record or
beneficially, shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Corporation or any other obligor upon the Securities or
any Affiliate of the Corporation or of such other obligor.
"Paying Agent" means any Person authorized by the Corporation to pay the
principal of or any premium or interest on any Securities on behalf of the
Corporation or the Guarantor.
5
<PAGE>
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Corporation upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any assistant vice
president, any senior trust officer, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
6
<PAGE>
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the case of such
principal, as such date may be advanced or extended as provided pursuant to the
terms of such Security and this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Vice President," when used with respect to the Corporation or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Corporation or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the
Corporation and the Guarantor shall each furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Corporation or the Guarantor,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
7
<PAGE>
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which such
officer's certificate or opinion is based are erroneous. Any such certificate
or opinion of counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Corporation or the Guarantor stating that the information with respect to
such factual matters is in the possession of the Corporation or the Guarantor,
as the case requires, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
Officers' Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date or dates
required with respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any action has
been taken by or at the request of the Corporation or the Guarantor in reliance
on an error or omission in the original document which should have been
corrected, the action so taken
8
<PAGE>
shall not be invalidated or otherwise rendered ineffective but shall be and
remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Corporation or the Guarantor, as the case may be, entitled to the benefits of
this Indenture equally and ratably with all other Outstanding Securities, except
as aforesaid.
Section 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Corporation
and the Guarantor. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee, the Corporation and the Guarantor, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than the signer's individual capacity,
such certificate or affidavit shall also constitute sufficient proof of the
signer's authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Corporation or
the Guarantor in reliance thereon, whether or not notation of such action is
made upon such Security.
Each of the Corporation and the Guarantor may set any day as a record date
for the purpose of determining the Holders of Outstanding Securities of any
series entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series;
provided that the Corporation and the Guarantor may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any
9
<PAGE>
notice, declaration, request or direction referred to in the next paragraph. If
any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take or revoke the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Corporation or the Guarantor from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Corporation or the
Guarantor, at their own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction or to revoke
the same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Corporation's or Guarantor's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable Expiration Date to be sent to
the Corporation and the Guarantor in writing and to each Holder of Securities of
the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date
10
<PAGE>
shall be deemed to have initially designated the 180th day after such record
date as the Expiration Date with respect thereto, subject to its right to change
the Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee, Corporation and Guarantor.
----------------------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Corporation shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Services, or
(2) the Corporation by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Corporation addressed to it at the address of its principal office
specified in the first paragraph of this instrument, Attention: Treasurer,
or at any other address previously furnished in writing to the Trustee by
the Corporation.
(3) the Guarantor by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Guarantor
addressed to it at the address of its principal office specified in the
first paragraph of this instrument, Attention: Treasurer, or at any other
address previously furnished in writing to the Trustee by the Guarantor.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed by
such Holder or the Corporation with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
11
<PAGE>
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Corporation or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities or the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities or the Guarantees, express
or implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
-------------
This Indenture, the Securities and the Guarantees shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of laws principles thereof.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or
12
<PAGE>
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity.
ARTICLE II.
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities of each series and the Guarantees to be endorsed thereon
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers
executing such Securities or Guarantees, as evidenced by their execution
thereof. If the form of Securities or Guarantees endorsed thereon of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Corporation and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities and Guarantees endorsed thereon shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
Guarantees, as evidenced by their execution thereof.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
SEMPRA ENERGY HOLDINGS
_____________________
GUARANTEED AS TO PAYMENT OF
PRINCIPAL, PREMIUM, IF ANY, AND INTEREST BY SEMPRA ENERGY
$ __________
No. _________ CUSIP No. ____
Sempra Energy Holdings, a corporation duly organized and existing under the
laws of the State of California (herein called the "Corporation," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to
13
<PAGE>
______________________, or registered assigns, the principal sum of ________
Dollars on _________________________ [if the Security is to bear interest prior
to Maturity and interest payment periods are not extendable, insert - , and to
pay interest thereon from __________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, [insert - semi-
annually, quarterly, monthly or other description of the relevant payment
period] on [________, ________,] and __________ in each year, commencing
_______________, at the rate of ____% per annum, until the principal hereof is
paid or made available for payment [if applicable, insert - , provided that any
principal and premium, and any such installment of interest, which is overdue
shall bear interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the [___________________]
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given by the Corporation to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ____% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Corporation maintained for that purpose in _________________, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable, insert -
; provided, however, that at the option of the Corporation payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register or by wire transfer at such
place and to such account at a banking
14
<PAGE>
institution in the United States as may be designated in writing to the Trustee
at least sixteen (16) days prior to the date for payment by the Person entitled
thereto].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated: SEMPRA ENERGY HOLDINGS
By___________________________________
Attest:
_________________________________
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Corporation (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of ________, ______ (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Corporation and _________________, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitation of rights, duties and immunities thereunder of the
Corporation, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert - , limited in aggregate principal amount to $__________].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert -
(1) on ____________ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert - on or after ___________, 19__], as a whole or in part, at
the election of the Corporation, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [if applicable, insert -
on or before _________________, ___%, and if redeemed] during the 12-month
period beginning _________ of the years indicated,
15
<PAGE>
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ______ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after _____________], as a whole or in part, at the
election of the Corporation, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-
month period beginning ________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Price for
Redemption Through Redemption Otherwise Than
Operation of the Through Operation
Year Sinking Fund of the Sinking Fund
--- ------------------ -------------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Corporation may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Corporation
16
<PAGE>
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on __________ in each year beginning with the year _______ and ending
with the year ______ of [if applicable, insert - not less than $___________
("mandatory sinking fund") and not more than] $____________ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Corporation otherwise than through [if applicable, insert -
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
As provided in the Indenture and subject to certain limitations therein set
forth, the obligations of the Corporation under this Security are Guaranteed on
a senior basis pursuant to the Guarantee endorsed hereon.
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of all series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
of all series at the time Outstanding affected thereby (voting as one class).
The
17
<PAGE>
Indenture contains provisions permitting the Holders of not less than a majority
in principal amount of the Securities of all series at the time Outstanding with
respect to which a default under the Indenture shall have occurred and be
continuing (voting as one class), on behalf of the Holders of the Securities of
all such series, to waive, with certain exceptions, such past default with
respect to all such series and its consequences. The Indenture also permits the
Holders of not less than a majority in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Corporation with certain provisions
of the Indenture. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange therefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like
18
<PAGE>
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Section 204. Form of Legend for Global Securities.
------------------------------------
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION
As Trustee
By:__________________________________
Authorized Officer
19
<PAGE>
ARTICLE III.
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1106 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable or the method by which such date shall be determined and
the right, if any, to shorten or extend the date on which the principal of
any Securities of the series is payable and the conditions to any such
change;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be
determined; the date or dates from which any such interest shall accrue;
the Interest Payment Dates on which any such interest shall be payable; the
manner (if any) of determination of such Interest Payment Dates; and the
Regular Record Date, if any, for any such interest payable on any Interest
Payment Date;
(6) the right, if any, to extend the interest payment periods and the
terms of such extension or extensions;
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(7) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable and whether, if
acceptable to the Trustee, any principal of such Securities shall be
payable without presentation or surrender thereof;
(8) the period or periods within which, or the date or dates on which,
the price or prices at which and the terms and conditions upon which any
Securities of the series may be redeemed, in whole or in part, at the
option of the Corporation and, if other than by a Board Resolution, the
manner in which any election by the Corporation to redeem the Securities
shall be evidenced;
(9) the obligation, if any, of the Corporation to redeem or purchase
any Securities of the series pursuant to any sinking fund, purchase fund or
analogous provisions or at the option of the Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(12) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Corporation or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal
21
<PAGE>
amount thereof which shall be due and payable upon any Maturity other than
the Stated Maturity or which shall be deemed to be Outstanding as of any
date prior to the Stated Maturity (or, in any such case, the manner in
which such amount deemed to be the principal amount shall be determined);
(16) if either or both of Sections 1302 and 1303 do not apply to any
Securities of the series;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositary or Depositaries for such
Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in
Section 204 and any circumstances in addition to or in lieu of those set
forth in Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) any addition, modification or deletion of any Events of Default
or covenants provided with respect to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant
to Section 502;
(19) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(20) any terms of the Guarantees with respect to the Securities of
such series in addition to those set forth in Section 1401, or any
exceptions to those set forth in Section 1401; and
(21) any other terms of the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Corporation and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms or the manner of determining the terms of
the series.
With respect to Securities of a series offered in a Periodic Offering, the
Board Resolution (or action taken pursuant thereto), Officers' Certificate or
supplemental indenture referred to above may provide general terms or parameters
for Securities of such series and provide either
22
<PAGE>
that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Corporation in accordance with other procedures specified in a Company Order as
contemplated by the third paragraph of Section 303.
Notwithstanding Section 301(2) herein and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable only in fully registered
form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Corporation by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Corporation shall bind the
Corporation, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
Unless otherwise provided as contemplated by Section 301, with respect to
any series of Securities, Guarantees to be endorsed on any Securities shall be
executed and delivered in accordance with the provisions of Section 1402.
At any time and from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series executed by the
Corporation, with the Guarantees endorsed thereon, to the Trustee for
authentication, together with a Company Order and a Guarantor Order for the
authentication and delivery of such Securities and the Guarantees endorsed
thereon, and the Trustee in accordance with the Company Order and the Guarantor
Order shall authenticate and deliver such Securities and the Guarantees endorsed
thereon, provided, however, that in the case of Securities offered in a Periodic
Offering, the Trustee shall authenticate and deliver such Securities, and the
Guarantees endorsed thereon, from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of oral or
electronic instructions from the Corporation or its duly authorized agents,
promptly confirmed in writing) acceptable to the Trustee as may be specified by
or pursuant to a Company Order and a Guarantor Order delivered to the Trustee
prior to the time of the first
23
<PAGE>
authentication of Securities of such series. If the form or terms of the
Securities of the series and the Guarantees endorsed thereon have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities and the Guarantees
endorsed thereon, and accepting the additional responsibilities under this
Indenture in relation to such Securities and the Guarantees endorsed thereon,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the forms of such Securities and Guarantees have been
established by or pursuant to Board Resolution as permitted by Section 201,
that such forms have been established in conformity with the provisions of
this Indenture;
(2) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity with the provisions
of this Indenture, subject, in the case of Securities of a series offered
in a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(3) that such Securities and the Guarantees endorsed thereon, when
authenticated and delivered by the Trustee and issued by the Corporation
and the Guarantor in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Corporation and the Guarantor enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order, the Guarantor Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Corporation and the Guarantor
of any of such Securities and Guarantees, the forms and terms thereof and the
legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel and the other documents delivered pursuant to Sections 201 and 301
and this Section, as applicable, in connection with the first authentication of
Securities of such series, with the Guarantees endorsed thereon.
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Each Security and any Guarantee endorsed thereon shall each be dated the
date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security or Guarantee endorsed
thereon has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Corporation, and the Corporation
shall deliver such Security to the Trustee for cancellation as provided in
Section 309, for all purposes of this Indenture such Security (including any
Guarantee endorsed thereon) shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Company Order and Guarantor Order the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, having Guarantees endorsed thereon, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities or Guarantees may determine, as evidenced by
their execution of such Securities or Guarantees.
If temporary Securities of any series are issued, the Corporation will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series, with the definitive Guarantees of the Guarantor
endorsed thereon, upon surrender of the temporary Securities of such series at
the office or agency of the Corporation in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series, the Corporation shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, with the definitive Guarantees of the
Guarantor endorsed thereon. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Corporation shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in any other
office or agency of the Corporation in a Place of Payment being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Corporation shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed
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<PAGE>
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Corporation in a Place of Payment for that series,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount, with the Guarantees of the Guarantor endorsed
thereon.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Corporation shall execute, and the Trustee shall authenticate
and deliver, the Securities, with the Guarantees of the Guarantor endorsed
thereon, which the Holder making the exchange is entitled to receive.
All Securities and Guarantees issued upon any registration of transfer or
exchange of Securities and the Guarantees endorsed thereon shall be the valid
obligations of the Corporation and the Guarantor, respectively, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities and Guarantees surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation, the Guarantor or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation, the Guarantor and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be assessed against the Holder for any registration
of transfer or exchange of Securities, but the Corporation may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1106 not
involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed, the Corporation shall not be required (A) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption and ending at the close of business on
the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
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<PAGE>
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary has notified the
Corporation that it is unwilling or unable to continue as Depositary for
such Global Security and a successor Depositary has not been appointed by
the Corporation within 90 days of receipt by the Corporation of such
notification, (B) if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act at a time when the Depositary is
required to be so registered to act as such Depositary and no successor
Depositary shall have been appointed by the Corporation within 90 days
after it became aware of such cessation, or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
Notwithstanding the foregoing, the Corporation may at any time in its sole
discretion determine that Securities issued in the form of a Global
Security shall no longer be represented in whole or in part by such Global
Security, and the Trustee, upon receipt of a Company Order therefor, shall
authenticate and deliver definitive Securities in exchange in whole or in
part for such Global Security.
(3) Subject to Clause (2) above, any exchange or transfer of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for or upon transfer of a Global Security or
any portion thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1106 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Corporation
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount, having a Guarantee of the Guarantor endorsed thereon and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Corporation, the Guarantor and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them
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harmless, then, in the absence of notice to the Corporation, the Guarantor or
the Trustee that such Security has been acquired by a bona fide purchaser, the
Corporation shall execute and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security, a new Security of the same
series and of like tenor and principal amount, having a Guarantee of the
Guarantor endorsed thereon and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation or the Guarantor in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security and any Guarantee endorsed thereon shall
constitute an original additional contractual obligation of the Corporation and
the Guarantor, respectively, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of that series duly issued hereunder and the Guarantees
endorsed on such Securities.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Corporation or
the Guarantor, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Corporation or the Guarantor may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Corporation or the Guarantor shall notify the Trustee in writing
28
<PAGE>
of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment, and at the same time the
Corporation or the Guarantor, as the case may be, shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Corporation and the
Guarantor of such Special Record Date and, in the name and at the expense
of the Corporation or the Guarantor, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Corporation or the Guarantor may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange, if any, on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Corporation or the
Guarantor to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Corporation, the Guarantor, the Trustee and any agent of the Corporation, the
Guarantor or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and none of the Corporation, the Guarantor, the Trustee or any agent of
the Corporation, the Guarantor or the Trustee shall be affected by notice to the
contrary.
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Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Corporation or the Guarantor may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Corporation or the Guarantor may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Corporation has not issued and
sold, and all Securities so delivered shall be promptly canceled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be
disposed of as directed by a Company Order; provided, however, that the Trustee
shall not be required to destroy such canceled Securities.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
-------------
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been
30
<PAGE>
replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Corporation and thereafter repaid
to the Corporation or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Corporation,
and the Corporation, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose (i) money in an amount, (ii) Government
Obligations (as defined in Section 1304) which through the scheduled
payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than the due date of any
payment, money in an amount, or (iii) a combination thereof,
sufficient, in the case of (ii) or (iii), in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and
discharge, the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Corporation or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Corporation or the Guarantor; and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation and the Guarantor to the Trustee under Section
607, the obligations of the Corporation to any Authenticating Agent under
Section 614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
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Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee. Money
so held in trust is subject to the Trustee's rights under Section 607.
ARTICLE V.
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is inapplicable to a particular series or is specifically deleted or
modified in the Board Resolution (or action taken pursuant thereto) or Officers'
Certificate delivered to the Trustee prior to the issuance of such series of
Securities or supplemental indenture under which such series of Securities is
issued or has been deleted or modified in an indenture supplemental hereto:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 60 days; provided, however, that if the Corporation is
permitted by the terms of the Securities of such series to defer the
payment in question, the date on which such payment is due and payable
shall be the date on which the Corporation is required to make payment
following such deferral, if such deferral has been elected pursuant to the
terms of the Securities; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the making of any sinking fund payment, when and as due
by the terms of a Security of that series, and continuance of such default
for a period of 60 days; or
(4) default in the performance, or breach, of any covenant of the
Corporation or the Guarantor in this Indenture (other than a covenant a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the
Corporation and the Guarantor by the Trustee or to the Corporation, the
Guarantor and the Trustee by the
32
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Holders of at least 25% in principal amount of the Outstanding Securities
of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder, unless the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not less than the principal
amount of Securities the Holders of which gave such notice, as the case may
be, shall agree in writing to an extension of such period prior to its
expiration; or
(5) the cessation of effectiveness of the Guarantee endorsed on a
Security of such series or the finding by any judicial proceeding that the
Guarantee endorsed on a Security of such series is unenforceable or invalid
or the denial or disaffirmation by the Guarantor of its obligations under
the Guarantee endorsed on a Security of such series; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Corporation or the Guarantor
in an involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Corporation or the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Corporation or the Guarantor under any applicable federal or state law,
or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Corporation or the Guarantor
or of any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(7) the commencement by the Corporation or the Guarantor of a
voluntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by the Corporation or the Guarantor to the entry of a decree or
order for relief in respect of the Corporation or the Guarantor in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Corporation or the Guarantor, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable federal or
state law, or the consent by the Corporation or the Guarantor to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Corporation or the Guarantor or of any substantial
part of its property, or the making by the Corporation or the Guarantor of
an assignment for the benefit of creditors, or the admission by the
Corporation or the Guarantor in writing of its inability to pay its debts
generally as they
33
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become due, or the authorization of any such action by the Board of
Directors of the Corporation or the Guarantor; or
(8) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Corporation (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Event of Default giving rise to such declaration of
acceleration shall, without further act, be deemed to have been waived, and such
declaration and its consequences shall, without further act, be deemed to have
been rescinded and annulled, if
(1) the Corporation or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Corporation and the Guarantor covenant that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 60 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Corporation or the Guarantor will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Corporation or the
Guarantor (or any other obligor upon the Securities), their property or their
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement,
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adjustment or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding; provided, however, that the Trustee may, on
behalf of the Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture, the Securities or the
Guarantees endorsed thereon may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
Third: To the payment of the balance, if any, to the Corporation or
any other Person or Persons legally entitled thereto.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
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<PAGE>
(2) the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
- --------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Corporation, the Guarantor, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
37
<PAGE>
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control By Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all series with respect to which any default under the
Indenture shall have occurred and be continuing (voting as one class) may, on
behalf of the Holders of all Securities of all such series, waive such past
default under the Indenture and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security of the series affected.
38
<PAGE>
Upon any such waiver, such default shall cease to exist and be deemed not
to have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Corporation, the Guarantor or
the Trustee.
Section 515. Waiver of Stay or Extension Laws.
--------------------------------
Each of the Corporation and the Guarantor covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Corporation and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. The permissive right of
Trustee to do things enumerated in this Indenture shall not be construed as a
duty to do such things and in no event shall the Trustee be liable for the
consequences of any act or omission except to the extent of Trustee's gross
negligence or willful misconduct. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default known to the Trustee occurs hereunder with respect to
Securities of any series, the Trustee shall give the Holders of Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character
39
<PAGE>
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Corporation or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order, or a Guarantor Request or a Guarantor Order, or as otherwise
expressly provided herein, and any resolution of the Board of Directors
shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate of the Corporation or
the Guarantor, as appropriate;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) prior to the occurrence of an Event of Default, the Trustee shall
undertake to perform only such duties as are specifically set forth in this
Indenture; and in case an Event of Default has occurred and is continuing,
the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture whether at the request or direction
of any of the Holders or pursuant to any other provision in this Indenture,
unless such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which might be
incurred by it;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, at reasonable times previously notified to the
Corporation or the Guarantor, to examine the
40
<PAGE>
relevant books, records and premises of the Corporation or the Guarantor,
personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities and the Guarantees
endorsed thereon, except the Trustee's certificates of authentication, shall be
taken as the statements of the Corporation or the Guarantor, as the case may be,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities or the Guarantees endorsed
thereon. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Corporation of Securities or the proceeds
thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing by the Trustee with the Corporation or the Guarantor.
Section 607. Compensation, Reimbursement and Indemnity
-----------------------------------------
The Corporation and the Guarantor jointly and severally agree
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Corporation and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel),
41
<PAGE>
except any such expense, disbursement or advance as may be attributable to
its negligence, willful misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, willful misconduct
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
The Trustee shall have a first priority lien prior to the Securities upon
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
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<PAGE>
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Corporation and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee, the Corporation
and the Guarantor.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Corporation, the Guarantor or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Corporation, the
Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Corporation and the Guarantor by Board
Resolutions may remove the Trustee with respect to all Securities, or (B)
subject to Section 514, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Corporation and the Guarantor, by
Board Resolutions, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence
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<PAGE>
of such vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Corporation
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Corporation and the Guarantor. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Corporation and the Guarantor or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Corporation shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
--------------------------------------
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation, the Guarantor and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Corporation, the Guarantor or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder (subject to the lien provided for on Section 607).
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Corporation, the
Guarantor, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one
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Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Corporation, the Guarantor or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Corporation and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Corporation.
-----------------------------------------------------
If and when the Trustee shall be or become a creditor of the Corporation or
the Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Corporation or the Guarantor (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents acceptable to the
Corporation with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration
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of transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Corporation and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided that such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Corporation and the Guarantor. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent, the Corporation and the Guarantor.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Corporation and
the Guarantor and shall give notice of such appointment in the manner provided
in Section 106 to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Corporation and the Guarantor, jointly and severally, agree to pay to
each Authenticating Agent from time to time reasonable compensation for its
services under this Section.
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If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
As Trustee
By:________________________________________
As Authenticating Agent
By:________________________________________
Authorized Officer
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders.
-------------------------------------------------------------
The Corporation and the Guarantor will furnish or cause to be furnished to
the Trustee
(1) 15 days after each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Corporation or the Guarantor of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Corporation, the Guarantor and the Trustee that none of the Corporation, the
Guarantor, the Trustee or any agent of any of them shall be held accountable by
reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each October 1 following the date of this Indenture, deliver to
Holders a brief report, dated as of such October 1, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Corporation and the
Guarantor. The Corporation and the Guarantor will promptly notify the Trustee
when any Securities are listed on any stock exchange.
Section 704. Reports by Corporation and Guarantor.
------------------------------------
The Corporation and the Guarantor shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute notice or constructive notice of any information contained
therein or determinable from information contained therein, including the
Corporation's or Guarantor's compliance with any of its covenants hereunder (as
to which the Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Corporation or Guarantor May Consolidate, Etc., on Certain Terms.
----------------------------------------------------------------
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Corporation or the Guarantor with or
into any other Person or Persons (whether or not affiliated with the Corporation
or the Guarantor), or successive consolidations or mergers in which the
Corporation or the Guarantor or its successor or successors shall be a party or
parties, or shall prevent any conveyance or transfer of the properties and
assets of the Corporation or the Guarantor as an entirety or substantially as an
entirety to any other Person (whether or not affiliated with the Corporation or
the Guarantor) lawfully entitled to acquire the same; provided, however, that
upon any such consolidation or
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merger, the Corporation and the Guarantor hereby covenant and agree, and upon
any such conveyance or transfer, the Guarantor hereby covenants and agrees that
(i) the due and punctual payment of the principal of and premium, if any, and
interest on all of the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Corporation and the Guarantor, shall be
expressly assumed, by indenture supplemental hereto, in form reasonably
satisfactory to the Trustee, executed and delivered to the Trustee by the Person
(if other than the Corporation or the Guarantor) formed by such consolidation,
or into which the Corporation or the Guarantor shall have been merged, or by the
Person which shall have acquired such properties and assets from the Guarantor,
and (ii) the Corporation or the Guarantor, as the case may be, shall deliver to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance or transfer and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Corporation or the Guarantor with, or merger
of the Corporation or the Guarantor into, any other Person or any conveyance or
transfer of the properties and assets of the Corporation or the Guarantor as an
entirety or substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Corporation or
the Guarantor, as the case may be, is merged or to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Corporation or the Guarantor, as the case may be,
under this Indenture with the same effect as if such successor Person had been
named as the Corporation or the Guarantor, as the case may be, herein, and
thereafter the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities or the Guarantees endorsed
thereon, as the case may be.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Corporation and the Guarantor, when
authorized by Board Resolutions, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Corporation or
the Guarantor, as the case may be, and the assumption by any such successor
of the covenants of the Corporation or the Guarantor, as the case may be,
herein and in the Securities or the Guarantees endorsed thereon; or
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(2) to add to the covenants of the Corporation or the Guarantor for
the benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein conferred
upon the Corporation or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series or any
Guarantees as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture (voting as one class), by Act of said Holders delivered to the
Corporation, the Guarantor and the Trustee, the Corporation and the Guarantor,
when authorized by Board Resolutions, and the Trustee may
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enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture, or modifying in
any manner the rights of the Holders of Securities under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or change the coin or currency in which any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1006, or the
deletion of this proviso, in accordance with the requirements of Sections
611 and 901(8). A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter
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into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation and the
Guarantor shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee, the Corporation and the Guarantor, to
any such supplemental indenture may be prepared and executed by the Corporation
(with Guarantees of the Guarantor endorsed thereon) and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Corporation and the Guarantor will maintain in each Place of Payment
for any series of Securities an office or agency where Securities of that series
may be presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices and
demands to or upon the Corporation or the Guarantor in respect of the Securities
of that series and this Indenture may be served. The Corporation and the
Guarantor will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Corporation or the Guarantor shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address
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thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Corporation and the
Guarantor hereby appoint the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Corporation or the Guarantor may also from time to time designate one
or more other offices or agencies where the Securities of one or more series may
be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Corporation or the Guarantor of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Corporation and the Guarantor
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Corporation shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Corporation will promptly notify the Trustee of its action or
failure so to act.
The Corporation will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Corporation (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust hereunder by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
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Subject to any applicable escheatment laws, any money deposited with the
Trustee or any Paying Agent, or then held by the Corporation, in trust for the
payment of the principal of or any premium or interest on any Security of any
series and remaining unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the Corporation on Company
Request, or (if then held by the Corporation) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Corporation and the Guarantor for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Corporation as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Corporation cause
to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Corporation.
Section 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Corporation and the Guarantor will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and franchises.
Section 1005. Statement by Officers as to Default.
-----------------------------------
Each of the Corporation and the Guarantor will deliver to the Trustee, on
or before October 15 of each calendar year or on or before such other day in
each calendar year as the Corporation, the Guarantor and the Trustee may from
time to time agree upon, an Officers' Certificate, stating whether or not to the
best knowledge of the signers thereof the Corporation or the Guarantor, as the
case may be, is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Corporation or
the Guarantor shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.
Section 1006. Waiver of Certain Covenants.
---------------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Corporation may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(19), 901(2)
or 901(7) for the benefit of the Holders of such series if before the time for
such compliance the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of
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the Corporation and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Corporation to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Corporation, the Corporation shall, at least 45 days prior to the Redemption
Date fixed by the Corporation (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of any redemption of
Securities (A) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (B)
pursuant to an election of the Corporation which is subject to a condition
specified in the terms of such Securities or elsewhere in this Indenture, the
Corporation and the Guarantor shall each furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction or condition
applicable to it.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series; provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series and of a
specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series and
of a specified tenor consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) such other matters as the Corporation shall deem desirable or
appropriate.
56
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Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any redemption of Securities at the election
of the Corporation, unless, upon the giving of notice of such redemption,
Defeasance shall have been effected with respect to such Securities pursuant to
Section 1302, such notice may state that such redemption shall be conditional
upon the receipt by the Trustee or the Paying Agent(s) for such Securities, on
or prior to the date fixed for such redemption, of money sufficient to pay the
principal of and any premium and interest on such Securities and that if such
money shall not have been so received such notice shall be of no force or effect
and the Corporation shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made, and the Trustee or Paying Agent(s) for the
Securities otherwise to have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at the election of the
Corporation, and any notice of non-satisfaction of redemption as aforesaid,
shall be given by the Corporation or, at the Corporation's request, by the
Trustee in the name and at the expense of the Corporation. Subject to the
preceding paragraph, any such notice of redemption shall be irrevocable.
Section 1105. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, and the conditions, if
any, set forth in such notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless,
in the case of an unconditional notice of redemption, the Corporation shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
said notice, such Security or portion thereof shall be paid by the Corporation
at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that no such surrender shall be a condition
to such payment if so specified as contemplated by Section 301 with respect to
such Security, and provided further that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
57
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Section 1106. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Corporation, the Guarantor or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Corporation, the Guarantor and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Corporation shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without a service charge levied against the Holder,
a new Security or Securities of the same series and of like tenor, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered, with the Guarantee of the Guarantor endorsed
thereon.
ARTICLE XII.
SINKING FUNDS
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Corporation (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Corporation pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
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Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Corporation will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and stating the basis for such credit and that such Securities have
not been previously so credited and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1105 and 1106.
ARTICLE XIII.
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Applicability of Article.
------------------------
Unless, pursuant to Section 301, provision is made that either or both of
(A) defeasance of any Securities or any series of Securities under Section 1302
and (B) covenant defeasance of any Securities or any series of Securities under
Section 1303 shall not apply to such Securities of a series, then the provisions
of either or both of Sections 1302 and Section 1303, as the case may be,
together with Sections 1304 and 1305, shall be applicable to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article.
Section 1302. Defeasance and Discharge.
------------------------
On and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Defeasance"), the Corporation and the Guarantor
may cause themselves to be discharged from their obligations with respect to any
Securities or any series of Securities and the Guarantees endorsed thereon. For
this purpose, such Defeasance means that the Corporation shall be deemed to
have paid and discharged the entire indebtedness represented by such Securities
and the Corporation and the Guarantor shall be deemed to have satisfied all
other obligations under such Securities and the Guarantees endorsed thereon and
this Indenture insofar as such Securities and the Guarantees endorsed thereon
are concerned (and the Trustee, at the expense of the Corporation or the
Guarantor, shall execute proper instruments acknowledging the same), subject to
the following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of such Securities to receive, solely from
the trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on
such Securities when payments are due, (2) the Corporation's and Guarantor's
obligations with respect to such Securities and the Guarantees endorsed thereon
under Sections 304, 305, 306, 1002 and 1003 and with respect to the Trustee
under Section 607, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder
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and (4) this Article. Subject to compliance with this Article, Defeasance with
respect to any Securities or any series of Securities and the Guarantees
endorsed thereon by the Corporation and the Guarantor is permitted under this
Section 1302 notwithstanding the prior exercise by the Corporation of its rights
under Section 1303 with respect to such Securities. Following a Defeasance,
payment of such Securities may not be accelerated because of an Event of
Default.
Section 1303. Covenant Defeasance.
-------------------
On and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"), the Corporation and the
Guarantor may cause themselves to be released from their obligations under any
covenants provided pursuant to Section 301(19), 901(2), 901(6) or 901(7) with
respect to any Securities or any series of Securities and the Guarantees
endorsed thereon for the benefit of the Holders of such Securities and the
occurrence of any event specified in Sections 501(4) (with respect to any such
covenants provided pursuant to Section 301(19), 901(2), 901(6) or 901(7)) or
501(7) shall be deemed not to be or result in an Event of Default with respect
to such Securities as provided in this Section. For this purpose, such Covenant
Defeasance means that, with respect to such Securities and the Guarantees
endorsed thereon, the Corporation and the Guarantor may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified in the case of
Section 501(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be,
and the Guarantees endorsed thereon:
(1) The Corporation or the Guarantor shall irrevocably have deposited
or caused to be deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than the due date of
any payment, money in an amount, or (C) a combination thereof, sufficient,
in the case of (B) or (C), in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities
or on any Redemption Date established pursuant to Clause (3) below, in
accordance with the terms of this Indenture and such Securities. As used
herein, "Government Obligation" means (x) any security which is (i) a
direct obligation of the United States of America or the government which
issued the foreign currency in which
60
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such Securities are payable, for the payment of which its full faith and
credit is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America or such government which issued the foreign currency in
which such Securities are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America or such other government, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any Government Obligation
which is specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any Government Obligation
which is so specified and held, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities, any other
Securities or any Guarantees endorsed thereon shall have occurred and be
continuing at the time of such deposit or, with regard to any such event
specified in Sections 501(5) and (6), at any time on or prior to the 90th
day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 90th day).
(3) If the Securities are to be redeemed prior to Stated Maturity
(other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have been
made.
(4) The Corporation and the Guarantor shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
---------------------------------------------------------------
Miscellaneous Provisions.
------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee (subject to Trustee's Section 607 lien), in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the
Corporation acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in respect
of principal and any premium and interest, but money so held in trust need not
be segregated from other funds except to the extent required by law.
The Corporation or the Guarantor shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
Government Obligations deposited
61
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pursuant to Section 1304 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
ARTICLE XIV.
GUARANTEE
Section 1401. Guarantee.
---------
The Guarantor hereby unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee, and to the Trustee on
behalf of such Holder, the due and punctual payment of the principal of, and
premium, if any, and interest, if any, on the Securities of such series when and
as the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption, or otherwise, in accordance
with the terms of such Security and of this Indenture. In case of the failure
of the Corporation punctually to make any such payment, the Guarantor hereby
agrees to cause such payment to be made punctually when and as the same shall
become due and payable, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise, and as if such payment were made
by the Corporation.
The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of such Security or this Indenture,
any failure to enforce the provisions of such Security or this Indenture, or any
waiver, modification or indulgence granted to the Corporation with respect
thereto, by the Holder of such Security or the Trustee or any other circumstance
which may otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor; provided, however, that notwithstanding the foregoing, no
such waiver, modification or indulgence shall, without the consent of the
Guarantor, increase the principal amount of such Security, or increase the
interest rate thereon, or change any redemption provisions thereof (including
any change to increase any premium payable upon redemption thereof), or change
the Stated Maturity thereof, that would be due and payable upon a declaration of
acceleration or the maturity thereof pursuant to Article Eight of this
Indenture.
The Guarantor hereby waives the benefits of diligence, presentment, demand
for payment, any requirement that the Trustee or any of the Holders exhaust any
right or take any action against the Corporation or any other Person, filing of
claims with a court in the event of insolvency or bankruptcy of the Corporation,
any right to require a proceeding first against the
62
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Corporation, protest or notice with respect to any Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged in respect of any Security except by complete performance
of the obligations contained in such Security and in this Guarantee. This
Guarantee shall constitute a guaranty of payment and not of collection. The
Guarantor hereby agrees that, in the event of a default in payment of principal,
or premium, if any, or interest, if any, on any Security, whether at its Stated
Maturity, by declaration of acceleration, call for redemption, or otherwise,
legal proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such Security, subject to the terms and conditions set forth in this
Indenture, directly against the Guarantor to enforce this Guarantee without
first proceeding against the Corporation.
The obligations of the Guarantor hereunder with respect to any Security
shall be continuing and irrevocable until the date upon which the entire
principal of, premium, if any, and interest on such Security has been, or has
been deemed pursuant to the provisions of Article Seven of this Indenture to
have been, paid in full or otherwise discharged.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Guarantee is endorsed against the Corporation in
respect of any amounts paid by the Guarantor on account of such Securities
pursuant to the provisions of its Guarantee or this Indenture; provided,
however, that the Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of, and premium, if any, and interest, if any, on all Securities
issued hereunder shall have been paid in full.
This Guarantee shall remain in full force and effect and continue
notwithstanding any petition filed by or against the Corporation for liquidation
or reorganization, the Corporation becoming insolvent or making an assignment
for the benefit of creditors or a receiver or trustee being appointed for all or
any significant part of the Corporation's assets, and shall, to the fullest
extent permitted by law, continue to be effective or reinstated, as the case may
be, if at any time payment of any Security, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
Holder of such Security, whether as a "voidable preference," "fraudulent
transfer," or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned on a Security, such Security shall, to the fullest
extent permitted by law, be reinstated and deemed paid only by such amount paid
and not so rescinded, reduced, restored or returned.
Section 1402. Execution and Delivery of Guarantee.
-----------------------------------
The Guarantee to be endorsed on the Securities of each series shall include
the terms of the Guarantee set forth in Section 1401 and any other terms that
may be set forth as established pursuant to Section 301. The Guarantor hereby
agrees to execute its Guarantee, in a form established pursuant to Section 201,
to be endorsed on each Security authenticated and delivered by the Trustee.
The Guarantee shall be executed on behalf of the Guarantor by its Chairman
of the Board, Vice Chairman of the Board, President or a Vice President, under
its corporate seal reproduced
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thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any such officer on the Guarantee may be manual or facsimile.
A Guarantee bearing the manual or facsimile signature of an individual who
was at the time of execution a Chairman of the Board, Vice Chairman of the
Board, President or a Vice President of the Guarantor shall bind the Guarantor,
notwithstanding that any such individual has ceased to be a Chairman of the
Board, Vice Chairman of the Board, President or a Vice President of the
Guarantor prior to the authentication and delivery of the Security on which such
Guarantee is endorsed or was not a Chairman of the Board, Vice Chairman of the
Board, President or a Vice President of the Guarantor at the date of such
Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
Guarantee set forth in Section 1401 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Security. The
Guarantor by its execution of this Indenture hereby authorizes the Corporation,
in the name and on behalf of the Guarantor, to confirm the applicable Guarantee
to the Holder of each Security authenticated and delivered hereunder by its
execution and delivery of each such Security, with such Guarantee endorsed
thereon, authenticated and delivered by the Trustee.
ARTICLE XV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1501. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of or any premium or interest
on any Security, any Guarantees or any part thereof, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Corporation or the Guarantor in this
Indenture or in any supplemental indenture, or in any Security, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Corporation, the Guarantor or of any successor corporation,
either directly or through the Corporation, the Guarantor or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities and the Guarantees endorsed thereon.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
SEMPRA ENERGY HOLDINGS
By /S/
---------------------------------
Attest:
/S/
- ----------------------------
SEMPRA ENERGY
By /S/
---------------------------------
Attest:
/S/
- ----------------------------
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By /S/
-----------------------------------
[Vice President]
Attest:
/S/
- ----------------------------
65
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Exhibit 4.8
SEMPRA ENERGY
AND
THE BANK OF NEW YORK,
TRUSTEE
PREFERRED SECURITIES GUARANTEE AGREEMENT
Dated as of __________________
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE I. DEFINITIONS AND INTERPRETATION............................................. 1
Section 1.1. Definitions and Interpretation........................................ 1
ARTICLE II. TRUST INDENTURE ACT........................................................ 4
Section 2.1. Trust Indenture Act; Application...................................... 4
Section 2.2. Lists of Holders of Securities........................................ 4
Section 2.3. Reports by Preferred Guarantee Trustee................................ 5
Section 2.4. Periodic Reports to Preferred Guarantee Trustee....................... 5
Section 2.5. Evidence of Compliance with Conditions Precedent...................... 5
Section 2.6. Events of Default; Waiver............................................. 5
Section 2.7. Event of Default; Notice.............................................. 6
Section 2.8. Conflicting Interests................................................. 6
ARTICLE III. POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE................. 6
Section 3.1. Powers and Duties of Preferred Guarantee Trustee...................... 6
Section 3.2. Certain Rights of Preferred Guarantee Trustee......................... 8
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee................. 9
ARTICLE IV. PREFERRED GUARANTEE TRUSTEE................................................10
Section 4.1. Preferred Guarantee Trustee; Eligibility..............................10
Section 4.2. Appointment, Removal and Resignation of Preferred Guarantee
Trustee...............................................................10
ARTICLE V. GUARANTEE..................................................................11
Section 5.1. Guarantee.............................................................11
Section 5.2. Waiver of Notice and Demand...........................................11
Section 5.3. Obligations Not Affected..............................................11
Section 5.4. Rights of Holders.....................................................12
Section 5.5. Guarantee of Payment..................................................13
Section 5.6. Subrogation...........................................................13
Section 5.7. Independent Obligations...............................................13
ARTICLE VI. LIMITATION OF TRANSACTIONS; RANKING........................................13
Section 6.1. Limitation of Transactions............................................13
Section 6.2. Ranking...............................................................14
</TABLE>
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<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE VII. TERMINATION..............................................................14
Section 7.1. Termination...........................................................14
ARTICLE VIII. INDEMNIFICATION.........................................................14
Section 8.1. Exculpation...........................................................14
Section 8.2. Indemnification.......................................................15
ARTICLE IX. MISCELLANEOUS..............................................................15
Section 9.1. Successors and Assigns................................................15
Section 9.2. Amendments............................................................15
Section 9.3. Notices...............................................................16
Section 9.4. Benefit...............................................................16
Section 9.5. Governing Law.........................................................16
</TABLE>
ii
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PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT ("Guarantee Agreement"),
-------------------
dated as of __________________, is executed and delivered by Sempra Energy, a
California corporation (the "Guarantor"), and The Bank of New York, as trustee
---------
(the "Preferred Guarantee Trustee"), for the benefit of the Holders (as defined
---------------------------
herein) from time to time of the Preferred Securities (as defined herein) of
Sempra Energy Capital Trust [I, II, or III], a Delaware statutory business trust
(the "Issuer").
------
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ______________, among the trustees of the Issuer
-----------
named therein, the Guarantor, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof $____________ aggregate stated liquidation amount of
Preferred Securities designated the _____% Trust Preferred Securities (the
"Preferred Securities").
--------------------
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires to irrevocably and unconditionally to agree,
to the extent set forth in this Guarantee Agreement, to pay to the Holders of
the Preferred Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein.
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee Agreement") in substantially
-------------------------------------
identical terms to this Guarantee Agreement for the benefit of the holders of
the Common Securities (as defined herein) except that if an Event of Default (as
defined in the Indenture (as defined herein)), has occurred and is continuing,
the rights of holders of the Common Securities to receive Guarantee Payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments under this
Guarantee Agreement.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders.
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.1. Definitions and Interpretation.
------------------------------
In this Guarantee Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
-----------
(b) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout;
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(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, as in effect on the date of this
Guarantee Agreement.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Distribution" has the meaning specified in the Declaration.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions which are
required to be paid on such Preferred Securities to the extent the Issuer shall
have funds available therefore, (ii) the redemption price, including all accrued
and unpaid Distributions to the date of redemption (the "Redemption Price") to
----------------
the extent the Issuer has funds available therefor, with respect to any
Preferred Securities called for redemption by the Issuer, and (iii) upon a
voluntary or involuntary dissolution and liquidation of the Issuer (other than
in connection with the distribution of Subordinated Notes to the Holders in
exchange for Preferred Securities as provided in the Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, to the extent
the Issuer shall have funds available therefor and (b) the amount of assets of
the Issuer remaining available for distribution to Holders of Preferred
Securities upon a dissolution and liquidation of the Issuer (in either case, the
"Liquidation Distribution"). If an Event of Default (as defined in the
------------------------
Indenture), has occurred and is continuing, the rights of the holders of the
Common Securities to receive Guarantee Payments under the Common Securities
Guarantee Agreement are subordinated to the
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rights of Holders of Preferred Securities to receive Guarantee Payments under
this Guarantee Agreement.
"Guarantor" shall mean Sempra Energy, a California corporation or any
permitted successor thereof under the Indenture, in its capacity as guarantor
under this Guarantee Agreement.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives or agents of the
Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of _________ __, ____ among
the Guarantor and The Bank of New York, as trustee, as supplemented by the
Officers' Certificate (as defined in the Indenture) dated _________ __, ____.
"Majority in liquidation amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, Holder(s) of Preferred Securities
voting separately as a class, who vote Preferred Securities and the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of the Preferred
Securities voted by such Holders represents more than 50% of the above stated
liquidation amount of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
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"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means The Bank of New York until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and thereafter
means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any vice-president, any assistant vice-president, any assistant
secretary, any assistant treasurer, any trust officer or assistant trust officer
or any other officer of the Preferred Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Subordinated Notes" means the series of subordinated debt securities
of the Guarantor designated the _____% Subordinated Notes due ____.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
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"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
--------------------------------
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
Section 2.2. Lists of Holders of Securities.
------------------------------
(a) The Guarantor shall provide the Preferred Guarantee Trustee
(i) semiannually, not later than June 30 and December 31 in each year, a list,
in such form as the Preferred Guarantee Trustee may reasonably require,
containing all the information in the
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possession or control of the Guarantor, or any of its Paying Agents other than
the Preferred Guarantee Trustee, as to the names and addresses of the Holders of
Securities ("List of Holders") as of the preceding June 15 or December 15, as
---------------
the case may be, and (ii) at such other times as the Preferred Guarantee Trustee
may request in writing, within 30 days after the receipt by the Guarantor of any
such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished. The Preferred Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders; and
(b) the Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3. Reports by Preferred Guarantee Trustee.
--------------------------------------
Within 60 days after May 15 of each year commencing May 15, 2000, the
Preferred Guarantee Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form and in the manner provided by Section 313 of the Trust
Indenture Act. The Preferred Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to Preferred Guarantee Trustee.
-----------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Guarantee Agreement which relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.6. Events of Default; Waiver.
-------------------------
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
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Section 2.7. Event of Default; Notice.
------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default known to the Preferred Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders of the Preferred
Securities, notices of all such Events of Default, unless such defaults have
been cured or waived before the giving of such notice, provided, that, the
Preferred Guarantee Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust committee
of directors and/or Responsible Officers, of the Preferred Guarantee Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default as to which a
Responsible Officer of the Preferred Guarantee Trustee shall have received
written notice or a Responsible Officer charged with the administration of the
Declaration shall have obtained written notice of.
Section 2.8. Conflicting Interests.
---------------------
The Declaration and the Indenture shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF PREFERRED GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of Preferred Guarantee Trustee.
------------------------------------------------
(a) This Guarantee Agreement shall be held by the Preferred
Guarantee Trustee for the benefit of the Holders of the Preferred Securities,
and the Preferred Guarantee Trustee shall not transfer this Guarantee Agreement
to any Person except a Holder of Preferred Securities exercising his or her
rights pursuant to Section 5.4(b) or to a Successor Preferred Guarantee Trustee
--------------
on acceptance by such Successor Preferred Guarantee Trustee of its appointment
to act as Preferred Guarantee Trustee. The right, title and interest of the
Preferred Guarantee Trustee shall automatically vest in any Successor Preferred
Guarantee Trustee, and such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Guarantee Agreement for the
benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing or waiver of all Events of Default that
may have occurred:
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(i) shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement and in the terms of the
Preferred Securities, and no implied covenants, duties or obligations shall
be read into this Guarantee Agreement against the Preferred Guarantee
Trustee; and
(ii) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Preferred Guarantee Trustee and conforming to the requirements of
this Guarantee Agreement; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be
furnished to the Preferred Guarantee Trustee, the Preferred Guarantee
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Guarantee Agreement.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Preferred Guarantee Trustee shall exercise such of
-----------
the rights and powers vested in it by this Guarantee Agreement, and use the same
degree of care and skill in their exercise or use, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee Agreement shall be construed
to relieve the Preferred Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this subsection shall not be construed to limit
subsection (c) of this Section;
(ii) the Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer of
the Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Preferred Guarantee Trustee shall not be liable
with respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Preferred Securities at the time outstanding
relating to the time, method and place of conducting any proceeding for any
remedy available to the Preferred Guarantee Trustee, or exercising any
trust or power conferred upon the Preferred Guarantee Trustee under this
Guarantee Agreement including, without limitation, with respect to the
Preferred Securities; and
(iv) no provision of this Guarantee Agreement shall
require the Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it shall
have reasonable ground for believing that the repayment of
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such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision
of this Guarantee Agreement relating to the conduct or affecting the liability
of or affording protection to the Preferred Guarantee Trustee shall be subject
to the provisions of this Section.
Section 3.2. Certain Rights of Preferred Guarantee Trustee.
---------------------------------------------
(a) Subject to the provisions of Section 3.1:
-----------
(i) the Preferred Guarantee Trustee may conclusively rely
and shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(ii) any act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Guarantee
Agreement, the Preferred Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Preferred Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Guarantor;
(iv) the Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
recording, refiling or registration thereof);
(v) the Preferred Guarantee Trustee may consult with
counsel of its selection and the written advice or opinion of such counsel
with respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon. Such counsel may be
counsel to the Guarantor or any of its Affiliates, and may include any of
its employees;
(vi) the Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder, unless such
Holder shall have offered to the Preferred Guarantee Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities
that might be incurred by it in complying with such request or direction;
(vii) the Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement,
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instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document, but the Preferred
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit and, if the
Preferred Guarantee Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Guarantor, personally or by agent or attorney at the sole
expense of the Guarantor and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(viii) the Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Preferred Guarantee
Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Preferred Guarantee Trustee
or its agents hereunder shall bind the Trust and the Holders of the
Preferred Securities and the signature of the Preferred Guarantee Trustee
or its agents alone shall be sufficient and effective to perform any such
action; and no third party shall be required to inquire as to the authority
of the Preferred Guarantee Trustee to so act, or as to its compliance with
any of the terms and provisions of this Guarantee Agreement, both of which
shall be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action;
(x) whenever in the administration of this Guarantee
Agreement the Preferred Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Preferred Guarantee Trustee (i) may
request instructions from the Holders of the Preferred Securities which
instructions may only be given by the Holders of the same proportion in
liquidation amount of the Preferred Securities as would be entitled to
direct the Preferred Guarantee Trustee under the terms of the Preferred
Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions;
(xi) the Preferred Guarantee Trustee shall not be liable
for any action taken or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon
it by this Guarantee; and
(xii) the rights, privileges, protections, immunities and
benefits given to the Preferred Guarantee Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Preferred Guarantee Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
(b) No provision of this Guarantee Agreement shall be deemed to
empower the Preferred Guarantee Trustee to vary the investment of any Holder of
the Preferred Securities or to act in a manner inconsistent with the status of
the Issuer as a grantor trust for United States federal income tax purposes.
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee.
-----------------------------------------------------
The recitals contained in this Guarantee Agreement shall be taken as
the statements of the Guarantor, and the Preferred Guarantee Trustee does not
assume any
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responsibility for their correctness. The Preferred Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV.
PREFERRED GUARANTEE TRUSTEE
Section 4.1. Preferred Guarantee Trustee; Eligibility.
----------------------------------------
(a) There shall at all times be a Preferred Guarantee Trustee
which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $50 million
dollars ($50,000,000), and subject to supervision or examination by
Federal, State or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above,
then for the purposes of this Section 4.1(a)(ii), the combined capital and
------------------
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published;
(b) if at any time the Preferred Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee
--------------
shall immediately resign in the manner and with the effect set out in Section
-------
4.2(c); and
- ------
(c) if the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
Section 4.2. Appointment, Removal and Resignation of Preferred Guarantee
-----------------------------------------------------------
Trustee.
- -------
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee
--------------
may be appointed or removed without cause at any time by the Guarantor;
(b) the Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
--------------
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor;
(c) the Preferred Guarantee Trustee appointed to office shall
hold office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee Trustee
may resign from office (without need for prior or
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subsequent accounting) by an instrument in writing executed by the Preferred
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Preferred Guarantee Trustee has been appointed and
has accepted such appointment by instrument in writing executed by such
Successor Preferred Guarantee Trustee and delivered to the Guarantor and the
resigning Preferred Guarantee Trustee; and
(d) if no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
-----------
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition at the expense of the
Guarantor any court of competent jurisdiction for appointment of a Successor
Preferred Guarantee Trustee. Such court may thereupon after such notice, if any,
as it may deem proper and prescribe, appoint a Successor Preferred Guarantee
Trustee.
ARTICLE V.
GUARANTEE
Section 5.1. Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of set-
off or counterclaim which the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 5.3. Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Preferred Securities or the
extension of time for the performance of any other
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obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that results
from the extension of any interest payment period on the Subordinated Notes or
any extension of the maturity date of the Subordinated Notes permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale
of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in the Preferred
Securities or the Subordinated Notes;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
-----------
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation on the Holders or any other Person to
give notice to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
Section 5.4. Rights of Holders.
-----------------
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Guarantee Agreement or exercising any trust or power
conferred upon the Preferred Guarantee Trustee under this Guarantee Agreement;
and
(b) notwithstanding the rights of the Preferred Guarantee Trustee
to enforce this Guarantee Agreement under Article III, any Holder of Preferred
-----------
Securities may institute a legal proceeding directly against the Guarantor to
enforce the Preferred Guarantee Trustee's rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Issuer, the Preferred
Guarantee Trustee or any other Person. Notwithstanding the foregoing, if the
Guarantor has failed to make a Guarantee Payment, a Holder of Preferred
Securities may directly institute a proceeding against the Guarantor for
enforcement of this Guarantee Agreement for such payment. The Guarantor waives
any right or remedy to require that any
12
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action be brought first against the Issuer or any other person or entity before
proceeding directly against the Guarantor.
Section 5.5. Guarantee of Payment.
--------------------
This Guarantee Agreement creates a guarantee of payment and not of
collection.
Section 5.6. Subrogation.
-----------
The Guarantor shall be subrogated to all rights, if any, of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Guarantee Agreement; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
Section 5.7. Independent Obligations.
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
-----------
ARTICLE VI.
LIMITATION OF TRANSACTIONS; RANKING
Section 6.1. Limitation of Transactions.
--------------------------
So long as any Preferred Securities remain outstanding, (a) the
Guarantor will not declare or pay any dividend on, or make any distributions
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock, and (b) the Guarantor will not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) of the Guarantor which rank
pari passu with or junior to the Subordinated Notes, if at such time (A) there
shall have occurred any Event of Default or (B) there shall have occurred any
Event of Default under the Declaration; provided, that, clause (a) above does
not apply to (i) any stock dividends paid by the Guarantor where the dividend
stock is the same as that on which the dividend is being paid, (ii) purchases or
acquisitions by the Guarantor of shares of its common stock in connection with
the satisfaction by the Guarantor or any of its subsidiaries of their respective
obligations under any benefit plans for directors, officers, agents or employees
of the Guarantor's dividend reinvestment or director, officer, agent or employee
stock purchase plans, (iii) a reclassification of the Guarantor's capital stock
or the exchange or conversion of one class or series of its capital
13
<PAGE>
stock for another class or series of its capital stock, (iv) the purchase of
fractional interests in shares of the Guarantor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or security being
converted or exchanged for capital stock, (v) dividends or distributions in
shares of, or options, warrants or rights to subscribe for or purchase shares of
the Guarantor's capital stock, or (vi) any declaration by the Guarantor of a
dividend in connection with the implementation or extension of a stockholders'
rights plan, or the issuance of stock under any such plan (including any such
existing plan) in the future or the redemption or repurchase or any such rights
pursuant thereto.
Section 6.2. Ranking.
-------
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor, except for those liabilities made pari
passu or junior by their terms to any liabilities of the Guarantor under this
Guarantee Agreement, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII.
TERMINATION
Section 7.1. Termination.
-----------
This Guarantee Agreement shall terminate with respect to each Holder
upon the first to occur of the following: full payment of the Redemption Price
of all Preferred Securities, the distribution of the Subordinated Notes to the
Holders of all of the Preferred Securities or full payment of the amounts
payable in accordance with the Declaration upon dissolution of the Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Preferred Securities must restore payment of any sums paid under the
Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII.
INDEMNIFICATION
Section 8.1. Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Guarantee Agreement and in a manner such Indemnified Person reasonably believed
to be within the scope of the authority conferred on such Indemnified Person by
this Guarantee Agreement or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence
14
<PAGE>
or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
Section 8.2. Indemnification.
---------------
(a) The Guarantor shall fully indemnify each Indemnified Person
for, and hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred by such Indemnified Person by
reason of any act or omission performed or omitted by such Indemnified Person
without negligence or bad faith in accordance with this Guarantee Agreement and
in a manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by this Guarantee Agreement.
(b) Reasonable expenses (including reasonable legal fees and
expenses) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Guarantor of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
-------
8.2(a).
- ------
(c) The provisions of this Section 8.2 shall survive termination
-----------
of this Guarantee or the resignation or removal of the Preferred Guarantee
Trustee.
ARTICLE IX.
MISCELLANEOUS
Section 9.1. Successors and Assigns.
----------------------
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding.
Section 9.2. Amendments.
----------
Except with respect to any changes which do not adversely affect the
rights of Holders in any material respect (in which case no consent of Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of at least a
15
<PAGE>
Majority in liquidation amount of the Preferred Securities. The provisions of
Section 12.2 of the Declaration with respect to meetings of Holders apply to the
- ------------
giving of such approval.
Section 9.3. Notices.
-------
All notices provided for in this Guarantee Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, postage prepaid, as follows:
(a) if given to the Preferred Guarantee Trustee at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
The Bank of New York
101 Barclay Street, 21-W
New York, New York 10286
Attn: Coporate Trust Administration
(b) if given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
Sempra Energy
101 Ash Street
San Diego, California 92101
Attn: General Counsel
Telephone: (619) 696-2034
(c) if given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed except that if a notice or
other document is refused delivery or cannot be delivered because of a changed
address of which no notice was given, such notice or other document shall be
deemed to have been delivered on the date of such refusal or inability to
deliver.
Section 9.4. Benefit.
-------
This Guarantee Agreement is solely for the benefit of the Holders of
the Preferred Securities and subject to Section 3.1(a) is not separately
--------------
transferable from the Preferred Securities.
Section 9.5. Governing Law.
-------------
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
16
<PAGE>
STATE OF NEW YORK INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.
17
<PAGE>
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT is executed as of the
day and year first above written.
SEMPRA ENERGY
as Guarantor
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK
as Preferred Guarantee Trustee
By: _______________________________
Name:
Title:
S-1
<PAGE>
Exhibit 4.9
DECLARATION OF TRUST
OF SEMPRA ENERGY CAPITAL TRUST I
DECLARATION OF TRUST ("Declaration") dated and effective as of April 22,
1999, by the undersigned trustees (together with all other Persons (as defined
herein) from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees") and the Parent (as
defined herein) as trust sponsor (the "Sponsor");
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act (as defined herein) for the
sole purpose of issuing and selling certain preferred securities, representing
undivided beneficial interests in the assets of the Trust, to the public and
certain common securities, representing undivided beneficial interests in the
assets of the Trust, to Sponsor; investing the proceeds thereof in certain
Subordinated Debt Securities (as defined herein) of the Parent; and distributing
the cash payments it receives on the subordinated debt securities it owns to the
holders of the preferred and common securities.
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
constitute a business trust under the Delaware Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests issued hereunder, subject to the
provisions of this Declaration.
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS.
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and to
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified; and
(e) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended.
<PAGE>
"BUSINESS DAY" means any day other than a day on which banking institutions
in New York, New York and California are authorized or required by law to close.
"COMMON SECURITY" means a security representing an undivided beneficial
interest in the Trust with such terms as may be set out in any amendment to this
Declaration.
"COVERED PERSON" means any employee or agent of the Trust or its
Affiliates.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et. seq., as it may be amended from time to
time.
"DELAWARE TRUSTEE" has the meaning set forth in Section 3.1.
"INDEMNIFIED PERSON" means any Trustee, any Affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Trustee or any employee or agent of the Trust or its
Affiliates.
"PARENT" means Sempra Energy, a California corporation.
"PERSON" means any individual, joint venture, partnership, corporation,
association, joint stock company, limited liability company, trust,
unincorporated organization or other entity.
"PREFERRED SECURITY" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"PROPERTY TRUSTEE" has the meaning set forth in Section 3.1.
"REGULAR TRUSTEE" means any Trustee other than the Delaware Trustee or the
Property Trustee.
"SECURITIES" means the Common Securities and the Preferred Securities.
"SPONSOR" means the Parent in its capacity as Sponsor of the Trust.
"SUBORDINATED DEBT SECURITIES" means the series of subordinated debt
securities to be issued by the Parent.
"TRUSTEE" or "TRUSTEES" means each Person who has signed the Declaration as
a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and servicing as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustee shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
<PAGE>
ARTICLE II.
ORGANIZATION
SECTION 2.1. NAME.
The Trust created by this Declaration is named "Sempra Energy Capital Trust
I." The Trust's activities may be conducted under the name of the Trust or any
other name deemed advisable by the Regular Trustees.
SECTION 2.2. OFFICE.
The address of the principal office of the Trust is 101 Ash Street, San
Diego, California 92101. At any time, the Regular Trustees may designate
another principal office.
SECTION 2.3. PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire an equivalent amount
of the Subordinated Debt Securities, (b) distribute the cash payments it
receives on the Subordinated Debt Securities it owns to the holders of
Securities, and (c) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investment or, other than as
permitted herein, pledge any of its assets.
SECTION 2.4. AUTHORITY.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no Person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5. TITLE TO PROPERTY OF THE TRUST.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6. POWERS OF THE TRUSTEES.
The Regular Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell Preferred Securities and Common Securities in
accordance with this Declaration and, in connection with such issue and sale, to
cause the Trust to file with the Securities and Exchange Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any pre- and post-effective amendments thereto (including any
<PAGE>
Registration Statement filed under Rule 462(b) of the Securities Act); provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
(b) employ or otherwise engage employees and agents (who may be designated
as officers with titles) and managers, contractors, advisors, and consultants
and provide for reasonable compensation for such services;
(c) to incur expenses which are necessary or incidental to carry out any of
the purposes of the Declaration;
(d) execute and enter into a Dealer Manager Agreement, Purchase Agreement
or Underwriting Agreement in connection with the issuance of Preferred
Securities; and
(e) execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing.
SECTION 2.7. FILING OF CERTIFICATE OF TRUST.
On or after the date of execution of this Declaration, the Trustees shall
cause the filing of a Certificate of Trust for the Trust with the Secretary of
State of the State of Delaware.
ARTICLE III.
TRUSTEES
SECTION 3.1. TRUSTEES.
The number of Trustees shall initially be five (5), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; PROVIDED, HOWEVER, that the number
of Trustees shall in no event be less than five (5); and PROVIDED, FURTHER, that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or which, if not a natural person, has its
principal place of business in the State of Delaware (the "Delaware Trustee").
Except as expressly set forth in this Declaration, any power of the Regular
Trustees may be exercised by, or with the consent of, a majority of the Regular
Trustees.
The initial Regular Trustees shall be Neal E. Schmale, Frank H. Ault and
Charles A. McMonagle, each having the same address as the Trust.
The initial Delaware Trustee shall be The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711. The initial property
trustee (the "Property Trustee") shall be The Bank of New York, 101 Barclay
Street, 21 West, New York, New York 10286.
<PAGE>
SECTION 3.2. DELAWARE TRUSTEE AND PROPERTY TRUSTEE.
Notwithstanding any other provisions of this Declaration, neither the
Delaware Trustee nor the Property Trustee shall be entitled to exercise any of
the powers or shall have any of the responsibilities described in this
Declaration of the Regular Trustees. Further, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 3.3. EXECUTION OF DOCUMENTS.
(a) Any Regular Trustee is authorized to execute on behalf of the Trust the
Registration Statement referred to in Section 2.6(a) and any amendments thereto
and any other documents that the Regular Trustees have the power and authority
to execute pursuant to Section 2.6; and
(b) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing the Registration Statement referred to in Section
2.6(a) and any amendment thereto or making any other governmental filing.
ARTICLE IV.
LIMITATION OF LIABILITY OF
SPONSOR, TRUSTEES OR OTHERS
SECTION 4.1. LIABILITY.
(a) Except as expressly set forth in this Declaration, the Sponsor shall
not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the holders of the
Securities which shall be made solely from assets of the Trust;
and
(ii) the Sponsor shall not be required to pay to the Trust or to any
holder of Securities any deficit upon dissolution or otherwise.
(b) The Sponsor shall be liable for all debts and obligations of the Trust
(other than with respect to the Securities) to the extent not satisfied out of
the Trust's assets.
SECTION 4.2. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such
<PAGE>
Indemnified Person's gross negligence or willful misconduct with respect to such
acts or omissions;
(b) an Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid; and
(c) the recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representation as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
SECTION 4.3. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity, are agreed by
the parties hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Person and any Indemnified Person; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
<PAGE>
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person;
or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.4. INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence or willful misconduct with respect to such
acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 4.4(a).
SECTION 4.5. OUTSIDE BUSINESSES.
Any Covered Person, the Delaware Trustee and the Property Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Property Trustee or the Delaware Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Property Trustee
and the Delaware Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity.
<PAGE>
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. AMENDMENTS.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided no amendment may alter or affect the Delaware
Trustee's or the Property Trustee's liabilities, rights or duties hereunder
without such trustee's prior written consent.
SECTION 5.2. TERMINATION OF TRUST.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor or the revocation of the Sponsor's
charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the Sponsor
or the Trust; or
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 5.2(a) and after satisfaction of liabilities of the Trust, the
Trustees shall file a certificate of cancellation with the Secretary of State of
the State of Delaware.
SECTION 5.3. GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 5.4. HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5. PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
<PAGE>
SECTION 5.6. COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
SEMPRA ENERGY,
as Sponsor
By: /s/ Neal E. Schmale
-------------------------------
Name: Neal E. Schmale
Title: Executive Vice President and Chief Financial Officer
Neal E. Schmale, as Regular Trustee
/s/ Neal E. Schmale
- ------------------------------------
Frank H. Ault, as Regular Trustee
/s/ Frank H. Ault
- ------------------------------------
Charles A. McMonagle, as Regular Trustee
/s/ Charles A. McMonagle
- ------------------------------------
The Bank of New York (Delaware),
as Delaware Trustee
By: /s/ Walter N. Gitlin
-------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
The Bank of New York,
as Property Trustee
By: /s/ Michele L. Russo
-------------------------------
Name: Michele L. Russo
Title: Assistant Treasurer
<PAGE>
Exhibit 4.10
DECLARATION OF TRUST
OF SEMPRA ENERGY CAPITAL TRUST II
DECLARATION OF TRUST ("Declaration") dated and effective as of April 22,
1999, by the undersigned trustees (together with all other Persons (as defined
herein) from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees") and the Parent (as
defined herein) as trust sponsor (the "Sponsor");
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act (as defined herein) for the
sole purpose of issuing and selling certain preferred securities, representing
undivided beneficial interests in the assets of the Trust, to the public and
certain common securities, representing undivided beneficial interests in the
assets of the Trust, to Sponsor, investing the proceeds thereof in certain
Subordinated Debt Securities (as defined herein) of the Parent; and distributing
the cash payments it receives on the subordinated debt securities it owns to the
holders of the preferred and common securities.
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
constitute a business trust under the Delaware Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests issued hereunder, subject to the
provisions of this Declaration.
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS.
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and to
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified; and
(e) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended.
<PAGE>
"BUSINESS DAY" means any day other than a day on which banking institutions
in New York, New York and California are authorized or required by law to close.
"COMMON SECURITY" means a security representing an undivided beneficial
interest in the Trust with such terms as may be set out in any amendment to this
Declaration.
"COVERED PERSON" means any employee or agent of the Trust or its
Affiliates.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et. seq., as it may be amended from time to
time.
"DELAWARE TRUSTEE" has the meaning set forth in Section 3.1.
"INDEMNIFIED PERSON" means any Trustee, any Affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Trustee or any employee or agent of the Trust or its
Affiliates.
"PARENT" means Sempra Energy, a California corporation.
"PERSON" means any individual, joint venture, partnership, corporation,
association, joint stock company, limited liability company, trust,
unincorporated organization or other entity.
"PREFERRED SECURITY" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"PROPERTY TRUSTEE" has the meaning set forth in Section 3.1.
"REGULAR TRUSTEE" means any Trustee other than the Delaware Trustee or the
Property Trustee.
"SECURITIES" means the Common Securities and the Preferred Securities.
"SPONSOR" means the Parent in its capacity as Sponsor of the Trust.
"SUBORDINATED DEBT SECURITIES" means the series of subordinated debt
securities to be issued by the Parent.
"TRUSTEE" or "TRUSTEES" means each Person who has signed the Declaration as
a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and servicing as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustee shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
<PAGE>
ARTICLE II.
ORGANIZATION
SECTION 2.1. NAME.
The Trust created by this Declaration is named "Sempra Energy Capital Trust
II." The Trust's activities may be conducted under the name of the Trust or any
other name deemed advisable by the Regular Trustees.
SECTION 2.2. OFFICE.
The address of the principal office of the Trust is 101 Ash Street, San
Diego, California 92101. At any time, the Regular Trustees may designate
another principal office.
SECTION 2.3. PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire an equivalent amount
of the Subordinated Debt Securities, (b) distribute the cash payments it
receives on the Subordinated Debt Securities it owns to the holders of
Securities, and (c) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investment or, other than as
permitted herein, pledge any of its assets.
SECTION 2.4. AUTHORITY.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no Person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5. TITLE TO PROPERTY OF THE TRUST.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6. POWERS OF THE TRUSTEES.
The Regular Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell Preferred Securities and Common Securities in
accordance with this Declaration and, in connection with such issue and sale, to
cause the Trust to file with the Securities and Exchange Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any pre- and post-effective amendments thereto (including any
<PAGE>
Registration Statement filed under Rule 462(b) of the Securities Act); provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
(b) employ or otherwise engage employees and agents (who may be designated
as officers with titles) and managers, contractors, advisors, and consultants
and provide for reasonable compensation for such services;
(c) to incur expenses which are necessary or incidental to carry out any of
the purposes of the Declaration;
(d) execute and enter into a Dealer Manager Agreement, Purchase Agreement
or Underwriting Agreement in connection with the issuance of Preferred
Securities; and
(e) execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing.
SECTION 2.7. FILING OF CERTIFICATE OF TRUST.
On or after the date of execution of this Declaration, the Trustees shall
cause the filing of a Certificate of Trust for the Trust with the Secretary of
State of the State of Delaware.
ARTICLE III.
TRUSTEES
SECTION 3.1. TRUSTEES.
The number of Trustees shall initially be five (5), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; PROVIDED, HOWEVER, that the number
of Trustees shall in no event be less than five (5); and PROVIDED, FURTHER, that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or which, if not a natural person, has its
principal place of business in the State of Delaware (the "Delaware Trustee").
Except as expressly set forth in this Declaration, any power of the Regular
Trustees may be exercised by, or with the consent of, a majority of the Regular
Trustees.
The initial Regular Trustees shall be Neal E. Schmale, Frank H. Ault and
Charles A. McMonagle, each having the same address as the Trust.
The initial Delaware Trustee shall be The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711. The initial property
trustee (the "Property Trustee") shall be The Bank of New York, 101 Barclay
Street, 21 West, New York, New York 10286.
<PAGE>
SECTION 3.2. DELAWARE TRUSTEE AND PROPERTY TRUSTEE.
Notwithstanding any other provisions of this Declaration, neither the
Delaware Trustee nor the Property Trustee shall be entitled to exercise any of
the powers or shall have any of the responsibilities described in this
Declaration of the Regular Trustees. Further, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 3.3. EXECUTION OF DOCUMENTS.
(a) Any Regular Trustee is authorized to execute on behalf of the Trust the
Registration Statement referred to in Section 2.6(a) and any amendments thereto
and any other documents that the Regular Trustees have the power and authority
to execute pursuant to Section 2.6; and
(b) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing the Registration Statement referred to in Section
2.6(a) and any amendment thereto or making any other governmental filing.
ARTICLE IV.
LIMITATION OF LIABILITY OF
SPONSOR, TRUSTEES OR OTHERS
SECTION 4.1. LIABILITY.
(a) Except as expressly set forth in this Declaration, the Sponsor shall
not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the holders of the
Securities which shall be made solely from assets of the Trust;
and
(ii) the Sponsor shall not be required to pay to the Trust or to any
holder of Securities any deficit upon dissolution or otherwise.
(b) The Sponsor shall be liable for all debts and obligations of the Trust
(other than with respect to the Securities) to the extent not satisfied out of
the Trust's assets.
SECTION 4.2. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such
<PAGE>
Indemnified Person's gross negligence or willful misconduct with respect to such
acts or omissions;
(b) an Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid; and
(c) the recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representation as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
SECTION 4.3. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity, are agreed by
the parties hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Person and any indemnified person; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
<PAGE>
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person;
or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.4. INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence or willful misconduct with respect to such
acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 4.4(a).
SECTION 4.5. OUTSIDE BUSINESSES.
Any Covered Person, the Delaware Trustee and the Property Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Property Trustee or the Delaware Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Property Trustee
and the Delaware Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity.
<PAGE>
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. AMENDMENTS.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided no amendment may alter or affect the Delaware
Trustee's or the Property Trustee's liabilities, rights or duties hereunder
without such trustee's prior written consent.
SECTION 5.2. TERMINATION OF TRUST.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor or the revocation of the Sponsor's
charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the Sponsor
or the Trust; or
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 5.2(a) and after satisfaction of the Trust, the Trustees shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware.
SECTION 5.3. GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 5.4. HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5. PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to Persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
<PAGE>
SECTION 5.6. COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
SEMPRA ENERGY,
as Sponsor
By: /s/ Neal E. Schmale
---------------------------------
Name: Neal E. Schmale
Title: Executive Vice President and Chief Financial Officer
Neal E. Schmale, as Regular Trustee
/s/ Neal E. Schmale
- --------------------------------------
Frank H. Ault, as Regular Trustee
/s/ Frank H. Ault
- --------------------------------------
Charles A. McMonagle, as Regular Trustee
/s/ Charles A. McMonagle
- --------------------------------------
The Bank of New York (Delaware),
as Delaware Trustee
By: /s/ Walter N. Gitlin
---------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
The Bank of New York,
as Property Trustee
By: /s/ Michele L. Russo
---------------------------------
Name: Michele L. Russo
Title: Assistant Treasurer
<PAGE>
Exhibit 4.11
DECLARATION OF TRUST
OF SEMPRA ENERGY CAPITAL TRUST III
DECLARATION OF TRUST ("Declaration") dated and effective as of April 22,
1999, by the undersigned trustees (together with all other Persons (as defined
herein) from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees") and the Parent (as
defined herein) as trust sponsor (the "Sponsor");
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act (as defined herein) for the
sole purpose of issuing and selling certain preferred securities, representing
undivided beneficial interests in the assets of the Trust, to the public and
certain common securities, representing undivided beneficial interests in the
assets of the Trust, to Sponsor; investing the proceeds thereof in certain
Subordinated Debt Securities (as defined herein) of the Parent; and distributing
the cash payments it receives on the subordinated debt securities it owns to the
holders of the preferred and common securities.
NOW, THEREFORE, it being the intention of the parties hereto that the Trust
constitute a business trust under the Delaware Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests issued hereunder, subject to the
provisions of this Declaration.
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS.
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and to
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified; and
(e) a reference to the singular includes the plural and vice versa.
"AFFILIATE" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended.
<PAGE>
"BUSINESS DAY" means any day other than a day on which banking institutions
in New York, New York and California are authorized or required by law to close.
"COMMON SECURITY" means a security representing an undivided beneficial
interest in the Trust with such terms as may be set out in any amendment to this
Declaration.
"COVERED PERSON" means any employee or agent of the Trust or its
Affiliates.
"DELAWARE BUSINESS TRUST ACT" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et. seq., as it may be amended from time to
time.
"DELAWARE TRUSTEE" has the meaning set forth in Section 3.1.
"INDEMNIFIED PERSON" means any Trustee, any Affiliate of any Trustee or any
officers, directors, shareholders, members, partners, employees, representatives
or agents of any Trustee or any employee or agent of the Trust or its
Affiliates.
"PARENT" means Sempra Energy, a California corporation.
"PERSON" means any individual, joint venture, partnership, corporation,
association, joint stock company, limited liability company, trust,
unincorporated organization or other entity.
"PREFERRED SECURITY" means a security representing an undivided beneficial
interest in the assets of the Trust with such terms as may be set out in any
amendment to this Declaration.
"PROPERTY TRUSTEE" has the meaning set forth in Section 3.1.
"REGULAR TRUSTEE" means any Trustee other than the Delaware Trustee or the
Property Trustee.
"SECURITIES" means the Common Securities and the Preferred Securities.
"SPONSOR" means the Parent in its capacity as Sponsor of the Trust.
"SUBORDINATED DEBT SECURITIES" means the series of subordinated debt
securities to be issued by the Parent.
"TRUSTEE" or "TRUSTEES" means each Person who has signed the Declaration as
a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and servicing as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustee shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
<PAGE>
ARTICLE II.
ORGANIZATION
SECTION 2.1. NAME.
The Trust created by this Declaration is named "Sempra Energy Capital Trust
III." The Trust's activities may be conducted under the name of the Trust or
any other name deemed advisable by the Regular Trustees.
SECTION 2.2. OFFICE.
The address of the principal office of the Trust is 101 Ash Street, San
Diego, California 92101. At any time, the Regular Trustees may designate
another principal office.
SECTION 2.3. PURPOSE.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Securities and use the proceeds from such sale to acquire an equivalent amount
of the Subordinated Debt Securities, (b) distribute the cash payments it
receives on the Subordinated Debt Securities it owns to the holders of
Securities, and (c) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investment or, other than as
permitted herein, pledge any of its assets.
SECTION 2.4. AUTHORITY.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no Person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
SECTION 2.5. TITLE TO PROPERTY OF THE TRUST.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6. POWERS OF THE TRUSTEES.
The Regular Trustees shall have the exclusive power and authority to cause
the Trust to engage in the following activities:
(a) to issue and sell Preferred Securities and Common Securities in
accordance with this Declaration and, in connection with such issue and sale, to
cause the Trust to file with the Securities and Exchange Commission a
registration statement on Form S-3 in relation to the Preferred Securities,
including any pre- and post-effective amendments thereto (including any
<PAGE>
Registration Statement filed under Rule 462(b) of the Securities Act); provided,
however, that the Trust may issue no more than one series of Preferred
Securities and no more than one series of Common Securities;
(b) employ or otherwise engage employees and agents (who may be designated
as officers with titles) and managers, contractors, advisors, and consultants
and provide for reasonable compensation for such services;
(c) to incur expenses which are necessary or incidental to carry out any of
the purposes of the Declaration;
(d) execute and enter into a Dealer Manager Agreement, Purchase Agreement
or Underwriting Agreement in connection with the issuance of Preferred
Securities; and
(e) execute all documents or instruments, perform all duties and powers,
and do all things for and on behalf of the Trust in all matters necessary or
incidental to the foregoing.
SECTION 2.7. FILING OF CERTIFICATE OF TRUST.
On or after the date of execution of this Declaration, the Trustees shall
cause the filing of a Certificate of Trust for the Trust with the Secretary of
State of the State of Delaware.
ARTICLE III.
TRUSTEES
SECTION 3.1. TRUSTEES.
The number of Trustees shall initially be five (5), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; PROVIDED, HOWEVER, that the number
of Trustees shall in no event be less than five (5); and PROVIDED, FURTHER, that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or which, if not a natural person, has its
principal place of business in the State of Delaware (the "Delaware Trustee").
Except as expressly set forth in this Declaration, any power of the Regular
Trustees may be exercised by, or with the consent of, a majority of the Regular
Trustees.
The initial Regular Trustees shall be Neal E. Schmale, Frank H. Ault and
Charles A. McMonagle, each having the same address as the Trust.
The initial Delaware Trustee shall be The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711 The initial property
trustee (the "Property Trustee") shall be The Bank of New York, 101 Barclay
Street, 21 West, New York, New York 10286.
<PAGE>
SECTION 3.2. DELAWARE TRUSTEE AND PROPERTY TRUSTEE.
Notwithstanding any other provisions of this Declaration, neither the
Delaware Trustee nor the Property Trustee shall be entitled to exercise any of
the powers or shall have any of the responsibilities described in this
Declaration of the Regular Trustees. Further, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 3.3. EXECUTION OF DOCUMENTS.
(a) Any Regular Trustee is authorized to execute on behalf of the Trust the
Registration Statement referred to in Section 2.6(a) and any amendments thereto
and any other documents that the Regular Trustees have the power and authority
to execute pursuant to Section 2.6; and
(b) a Regular Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purposes of signing the Registration Statement referred to in Section
2.6(a) and any amendment thereto or making any other governmental filing.
ARTICLE IV.
LIMITATION OF LIABILITY OF
SPONSOR, TRUSTEES OR OTHERS
SECTION 4.1. LIABILITY.
(a) Except as expressly set forth in this Declaration, the Sponsor shall
not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the holders of the
Securities which shall be made solely from assets of the Trust;
and
(ii) the Sponsor shall not be required to pay to the Trust or to any
holder of Securities any deficit upon dissolution or otherwise.
(b) The Sponsor shall be liable for all debts and obligations of the Trust
(other than with respect to the Securities) to the extent not satisfied out of
the Trust's assets.
SECTION 4.2. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such
<PAGE>
Indemnified Person's gross negligence or willful misconduct with respect to such
acts or omissions;
(b) an Indemnified Person shall be fully protected in relying in good faith
upon the records of the Trust and upon such information, opinions, reports or
statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid; and
(c) the recitals contained in this Declaration shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representation as to the value or
condition of the property of the Trust or any part thereof. The Trustees make
no representations as to the validity or sufficiency of this Declaration.
SECTION 4.3. FIDUCIARY DUTY.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity, are agreed by
the parties hereto to replace such other duties and liabilities of such
Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between any
Covered Persons and any Indemnified Person; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
<PAGE>
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person;
or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.4. INDEMNIFICATION.
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence or willful misconduct with respect to such
acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 4.4(a).
SECTION 4.5. OUTSIDE BUSINESSES.
Any Covered Person, the Delaware Trustee and the Property Trustee may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Property Trustee or the Delaware Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Property Trustee
and the Delaware Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity.
<PAGE>
ARTICLE V.
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1. AMENDMENTS.
At any time before the issue of any Securities, this Declaration may be
amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided no amendment may alter or affect the Delaware
Trustee's or the Property Trustee's liabilities, rights or duties hereunder
without such trustee's prior written consent.
SECTION 5.2. TERMINATION OF TRUST.
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor or the revocation of the Sponsor's
charter or of the Trust's certificate of trust;
(iii) upon the entry of a decree of judicial dissolution of the Sponsor
or the Trust; or
(iv) before the issue of any Securities, with the consent of all of
the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event referred to
in Section 5.2(a) and after satisfaction of liabilities of the Trust, the
Trustees shall file a certificate of cancellation with the Secretary of State of
the State of Delaware.
SECTION 5.3. GOVERNING LAW.
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 5.4. HEADINGS.
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
SECTION 5.5. PARTIAL ENFORCEABILITY.
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
<PAGE>
SECTION 5.6. COUNTERPARTS.
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
SEMPRA ENERGY,
as Sponsor
By: /s/ Neal E. Schmale
-----------------------
Name: Neal E. Schmale
Title: Executive Vice President and Chief Financial Officer
Neal E. Schmale, as Regular Trustee
/s/ Neal E. Schmale
- ----------------------------
Frank H. Ault, as Regular Trustee
/s/ Frank H. Ault
- ----------------------------
Charles A. McMonagle, as Regular Trustee
/s/ Charles A. McMonagle
- ----------------------------
The Bank of New York (Delaware),
as Delaware Trustee
By: /s/ Walter N. Gitlin
-----------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
The Bank of New York,
as Property Trustee
By: /s/ Michele L. Russo
-----------------------
Name: Michele L. Russo
Title: Assistant Treasurer
<PAGE>
Exhibit 4.12
__________________________________________
AMENDED AND RESTATED DECLARATION
OF TRUST
SEMPRA ENERGY CAPITAL TRUST [ ]
Dated as of [ ], [199]/[200_]
__________________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C> <C>
ARTICLE I. INTERPRETATION AND DEFINITIONS...................................1
Section 1.1. Definitions..................................................1
ARTICLE II. TRUST INDENTURE ACT..............................................6
Section 2.1. Trust Indenture Act; Application.............................6
Section 2.2. Lists of Holders of Securities...............................6
Section 2.3. Reports by the Property Trustee..............................7
Section 2.4. Periodic Reports to the Property Trustee.....................7
Section 2.5. Evidence of Compliance with Conditions Precedent.............7
Section 2.6. Events of Default; Waiver....................................7
Section 2.7. Event of Default; Notice.....................................9
ARTICLE III. ORGANIZATION.....................................................9
Section 3.1. Name.........................................................9
Section 3.2. Office.......................................................9
Section 3.3. Purpose......................................................9
Section 3.4. Authority...................................................10
Section 3.5. Title to Property of the Trust..............................10
Section 3.6. Powers and Duties of the Regular Trustees...................10
Section 3.7. Prohibition of Actions by the Trust and the Trustees........13
Section 3.8. Powers and Duties of the Property Trustee...................14
Section 3.9. Certain Duties and Responsibilities of the Property Trustee.16
Section 3.10. Certain Rights of the Property Trustee......................17
Section 3.11. Delaware Trustee............................................19
Section 3.12. Execution of Documents......................................19
Section 3.13. Not Responsible for Recitals or Issuance of Securities......19
Section 3.14. Duration of Trust...........................................19
Section 3.15. Mergers.....................................................19
ARTICLE IV. SPONSOR.........................................................21
Section 4.1. Sponsor's Purchase of Common Securities.....................21
Section 4.2. Responsibilities of the Sponsor.............................21
Section 4.3. Right to Proceed............................................22
ARTICLE V. TRUSTEES........................................................22
Section 5.1. Number of Trustees..........................................22
Section 5.2. Delaware Trustee............................................22
Section 5.3. Property Trustee; Eligibility...............................22
Section 5.4. Qualifications of Regular Trustees and Delaware Trustee
Generally...................................................23
Section 5.5. Regular Trustees............................................23
Section 5.6. Appointment, Removal and Resignation of Trustees............24
Section 5.7. Vacancies Among Trustees....................................25
Section 5.8. Effect of Vacancies.........................................25
Section 5.9. Meetings....................................................25
</TABLE>
i
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<TABLE>
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<S> <C> <C>
Section 5.10. Delegation of Power.............................................................26
Section 5.11. Merger, Conversion, Consolidation or Succession to Business.....................26
ARTICLE VI. DISTRIBUTIONS.......................................................................26
Section 6.1. Distributions...................................................................26
ARTICLE VII. ISSUANCE OF SECURITIES..............................................................27
Section 7.1. General Provisions Regarding Securities.........................................27
ARTICLE VIII. DISSOLUTION AND TERMINATION OF TRUST................................................28
Section 8.1. Dissolution and Termination of Trust............................................28
ARTICLE IX. TRANSFER OF INTERESTS...............................................................29
Section 9.1. Transfer of Securities..........................................................29
Section 9.2. Transfer of Certificates........................................................29
Section 9.3. Deemed Security Holders.........................................................30
Section 9.4. Book Entry Interests............................................................30
Section 9.5. Notices to Clearing Agency......................................................31
Section 9.6. Appointment of Successor Clearing Agency........................................31
Section 9.7. Definitive Preferred Security Certificates Under Certain Circumstances..........32
Section 9.8. Mutilated, Destroyed, Lost or Stolen Certificates...............................32
ARTICLE X. LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS................33
Section 10.1. Liability.......................................................................33
Section 10.2. Exculpation.....................................................................33
Section 10.3. Fiduciary Duty..................................................................34
Section 10.4. Indemnification.................................................................35
Section 10.5. Outside Businesses..............................................................35
ARTICLE XI. ACCOUNTING..........................................................................35
Section 11.1. Fiscal Year.....................................................................35
Section 11.2. Certain Accounting Matters......................................................36
Section 11.3. Banking.........................................................................36
Section 11.4. Withholding.....................................................................36
ARTICLE XII. AMENDMENTS AND MEETINGS.............................................................37
Section 12.1. Amendments......................................................................37
Section 12.2. Meetings of the Holders of Securities; Action by Written Consent................38
ARTICLE XIII. REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE....................39
Section 13.1. Representations and Warranties of the Property Trustee..........................39
Section 13.2. Representations and Warranties of the Delaware Trustee..........................40
ARTICLE XIV. MISCELLANEOUS.......................................................................40
Section 14.1. Notices.........................................................................40
Section 14.2. Governing Law...................................................................41
Section 14.3. Intention of the Parties........................................................42
</TABLE>
ii
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<S> <C> <C>
Section 14.4. Headings...............................................................42
Section 14.5. Successors and Assigns.................................................42
Section 14.6. Partial Enforceability.................................................42
Section 14.7. Counterparts...........................................................42
</TABLE>
iii
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
SEMPRA ENERGY CAPITAL TRUST[ ]
[ ], [1999]/[200_]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of [ ], [1999]/[200_] by the undersigned trustees (together with
all other Persons from time to time duly appointed and serving as trustees in
accordance with the provisions of this Declaration, the "Trustees"), Sempra
Energy, a California corporation, as trust sponsor (the "Sponsor"), and by the
holders, from time to time, of the securities representing undivided beneficial
interests in the assets of the Sempra Energy Capital Trust[ ] (the "Trust") to
be issued pursuant to this Declaration;
WHEREAS, certain of the Trustees and the Sponsor established a trust (the
"Trust") under the Business Trust Act (as defined herein) pursuant to a
Declaration of Trust, dated as of April 22, 1999 (the "Original Declaration")
and a Certificate of Trust filed with the Secretary of State of Delaware on
April 22, 1999, for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and
investing the proceeds thereof in certain Subordinated Debt Securities (as
defined herein) of the Subordinated Debt Securities Issuer (as defined herein);
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I.
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions. Unless the context otherwise requires:
-----------
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same
meaning throughout;
(c) all references to "the Declaration" or "this Declaration" are
to this Amended and Restated Declaration of Trust as modified, supplemented or
amended from time to time;
(d) all references in this Declaration to Articles and Sections
and Exhibits are to Articles and Sections of and Exhibits to this Declaration
unless otherwise specified;
1
<PAGE>
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration; and
(f) a reference to the singular includes the plural and vice
versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act as in effect on the date of this Declaration.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a day on which banking institutions
in New York, New York and California are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. (S)(S)3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as depositary for the
Preferred Securities and in whose name or in the name of a nominee of that
organization, shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Clearing Agency
effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means [ ], [1999]/[200_].
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement to be dated as
of [ ], [1999]/[200_] of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex II to Exhibit A.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of: (i) the Trust; or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.4.
2
<PAGE>
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" in respect of the Securities means an Event of Default
(as defined in the Indenture) has occurred and is continuing in respect of the
Subordinated Debt Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time or any successor legislation.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a Security
is registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means
(i) any Trustee;
(ii) any Affiliate of any Trustee;
(iii) any officers, directors, shareholders, members,
partners, employees, representatives or agents of any Trustee; or
(iv) any employee or agent of the Trust or its Affiliates.
"Indenture" means the Indenture dated as of [ ], [1999]/[200_] among the
Subordinated Debt Securities Issuer and The Bank of New York, as trustee, as
supplemented by an Officers' Certificate (as defined in the Indenture) dated as
of [ ], [1999]/[200_] pursuant to Section 301 of the Indenture.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(h).
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of Securities voting together as a single class or, as the
context may require, Holder(s) of Preferred Securities or Common Securities
voting separately as a class, who vote Securities of a relevant class and the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of the Securities
3
<PAGE>
voted by such Holders represents more than 50% of the above stated aggregate
liquidation amount of all Securities of such class.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board, the Vice Chairman of the Board, the Chief
Executive Officer, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, an Assistant Controller, the Secretary or
an Assistant Secretary of such Person. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Declaration shall include:
(a) a statement that each officer signing the Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of [ ], [1999]/[200_] of the Sponsor in respect of the Preferred Securities.
"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Annex I to Exhibit A.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Purchase Agreement" means the Purchase Agreement or Underwriting Agreement
for the offering and sale of Preferred Securities, substantially in the form of
Exhibit C.
4
<PAGE>
"Quorum" means a majority of the Regular Trustees or if there are only two
Regular Trustees, both of them.
"Regular Trustee" means any Trustee other than the Property Trustee and the
Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
Vice-President, any Assistant Vice-President, any Assistant Secretary, any
Assistant Treasurer, any Trust Officer or Assistant Trust Officer or any other
officer of the Property Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor legislation.
"Special Event" has the meaning set forth in the terms of the Securities.
"Sponsor" means Sempra Energy, a California corporation or any permitted
successor thereof under the Indenture, in its capacity as sponsor of the Trust.
"Subordinated Debt Securities" means the series of Subordinated Debt
Securities to be issued by the Subordinated Debt Securities Issuer under the
Indenture to be held by the Property Trustee pursuant to Section 3.6(c), a
specimen certificate for such series of Subordinated Debt Securities attached
hereto as Exhibit B.
"Subordinated Debt Securities Issuer" means Sempra Energy, a California
corporation.
"Subordinated Debt Securities Trustee" means The Bank of New York, as
trustee under the Indenture until a successor is appointed thereunder and
thereafter means such successor trustee.
"Successor Property Trustee" means a successor Trustee possessing the
qualifications to act as Property Trustee under Section 5.3(a).
"25% in liquidation amount of the Securities" means, except as provided in
the terms of the Preferred Securities and by the Trust Indenture Act, Holder(s)
of Securities voting together as a single class or, as the context may require,
Holder(s) of Preferred Securities or Common Securities, voting separately as a
class, who vote Securities of a relevant class and the liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of the Securities voted by such Holders
represents 25% of the above stated aggregate liquidation amount of all
Securities of such class.
5
<PAGE>
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
from time to time, or any successor legislation.
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such Person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
--------------------------------
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions;
(b) the Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act;
(c) if and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by (S)(S) 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control; and
(d) the application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
Section 2.2. Lists of Holders of Securities.
------------------------------
(a) Each of the Sponsor and the Regular Trustees, on behalf of
the Trust, shall provide the Property Trustee (i) semiannually, not later than
June 30 and December 31 in each year, a list, in such form as the Property
Trustee may reasonably require, containing all the information in the possession
or control of the Sponsor, or any of its Paying Agents other than the Property
Trustee, as to the names and addresses of the Holders of Securities ("List of
Holders") as of the preceding June 15 or December 15, as the case may be, and
(ii) at such other times as the Property Trustee may request in writing, within
30 days after the receipt by the Trust of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished. The Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to
it or which it receives in its capacity as Paying Agent (if acting in such
capacity) provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders; and
(b) the Property Trustee shall comply with its obligations under
(S)(S) 311(a), 311(b) and 312(b) of the Trust Indenture Act.
6
<PAGE>
Section 2.3. Reports by the Property Trustee. Within 60 days after May 15
-------------------------------
of each year, commencing May [ ], the Property Trustee shall provide to the
Holders of the Securities such reports as are required by (S) 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by (S) 313 of the
Trust Indenture Act. The Property Trustee shall also comply with the
requirements of (S) 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to the Property Trustee. Each of the
----------------------------------------
Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to the
Property Trustee such documents, reports and information as required by (S) 314
(if any) and the compliance certificate required by (S) 314 of the Trust
Indenture Act in the form, in the manner and at the times required by (S) 314 of
the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent. Each of
------------------------------------------------
the Sponsor and the Regular Trustees, on behalf of the Trust, shall provide to
the Property Trustee such evidence of compliance with any conditions precedent,
if any, provided for in this Declaration which relate to any of the matters set
forth in (S) 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to (S) 314(c)(1) may be given in the
form of an Officers' Certificate.
Section 2.6. Events of Default; Waiver.
-------------------------
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a
majority in principal amount of the holders of Subordinated Debt
Securities affected thereby (a "Super Majority") to be waived under
the Indenture, the Event of Default under this Declaration may only be
waived by the vote of the Holders of at least the proportion in
liquidation amount of the Preferred Securities which the relevant
Super Majority represents of the aggregate principal amount of the
Subordinated Debt Securities outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with
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respect to the Common Securities and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under this Declaration as provided below in the proviso to
this Section 2.6(b), the Event of Default under this Declaration shall
also be not waivable; or
(ii) requires the consent or vote of a Super Majority to
be waived, except where the Holders of the Common Securities are
deemed to have waived such Event of Default under this Declaration as
provided below in the proviso to this Section 2.6(b), the Event of
Default under this Declaration may only be waived by the vote of the
Holders of at least the proportion in liquidation amount of the Common
Securities which the relevant Super Majority represents of the
aggregate principal amount of the Subordinated Debt Securities
outstanding,
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities; and provided, further, that any waiver by the Holders of the
Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holder of the Common Securities. The foregoing provisions of
this Section 2.6(b) shall be in lieu of Section 316(a)(1)(A) and Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(A) and
Section 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded
from this Declaration and the Securities, as permitted by the Trust Indenture
Act. Subject to the foregoing provisions of this Section 2.6(b), upon such
waiver, any such default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of any Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities
constitutes a waiver of the corresponding Event of Default with respect to the
Preferred Securities under this Declaration. Any waiver of an Event of Default
under the Indenture by the Property Trustee at the direction of the Holders of
the Preferred Securities shall also be deemed to constitute a waiver by the
Holders of the Common Securities of the corresponding Event of Default under
this Declaration with respect to the Common Securities for all purposes of this
Declaration without further act, vote or consent of the Holders of the Common
Securities. The foregoing provisions of this Section 2.6(c) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Declaration and
the Securities, as permitted by the Trust Indenture Act.
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Section 2.7. Event of Default; Notice.
------------------------
(a) The Property Trustee shall, within 90 days after the
occurrence of an Event of Default with respect to the Securities known to the
Property Trustee, transmit by mail, first class postage prepaid, to the Holders
of the Securities, notices of all such defaults unless such defaults have been
cured before the giving of such notice (the term "defaults" for the purposes of
this Section 2.7(a) being hereby defined to be an Event of Default as defined in
the Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided, that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Subordinated Debt Securities or in the payment of any
sinking fund installment established for the Subordinated Debt Securities, the
Property Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers, of the Property Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall
have received written notice or of which a Responsible Officer of the
Property Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III.
ORGANIZATION
Section 3.1. Name. The Trust is named "Sempra Energy Capital Trust [ ]",
----
as such name may be modified from time to time by the Regular Trustees following
written notice to the Holders of Securities. The Trust's activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Regular Trustees.
Section 3.2. Office. The address of the principal office of the Trust is
------
c/o Sempra Energy, 101 Ash Street, San Diego, California, 92101. On ten (10)
Business Days written notice to the Property Trustee and Holders of Securities,
the Regular Trustees may designate another principal office.
Section 3.3. Purpose. The exclusive purposes and functions of the Trust
-------
are (a) to issue and sell Securities and use the proceeds from such sale to
acquire an equivalent amount of the Subordinated Debt Securities, (b) distribute
the cash payments it receives on the Subordinated Debt Securities it owns to the
holders of Securities, and (c) except as otherwise limited herein, to engage in
only those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust. It is the intention of all of
the parties hereto that the Trust created hereunder constitutes a "grantor
trust" for United States federal income tax purposes under the Code, and all
parties hereto, and the Holders of the Preferred Securities by the purchase of
the Preferred Securities, agree to treat the Trust with such characterization.
The provisions of this Agreement shall be interpreted consistently with such
characterization. Unless otherwise required by law, by the acceptance of this
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Trust, neither the Trustees, the Sponsor nor the Holders of the Preferred
Securities or Common Securities will take any position which is contrary to the
classification of the Trust as a grantor trust for United States federal income
tax purposes.
Section 3.4. Authority.
---------
(a) Subject to the limitations provided in this Declaration and
to the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the Trust. Persons dealing with the Trust are
entitled to rely conclusively on the power and authority of the Trustees as set
forth in this Declaration.
(b) Except as expressly set forth in this Declaration and except
if a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(c) Except as otherwise required by the Business Trust Act or
applicable law, any Regular Trustee is authorized to execute on behalf of the
Trust any documents which the Regular Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.6.
(d) A Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of executing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
Section 3.5. Title to Property of the Trust. Except as provided in
------------------------------
Section 3.8 with respect to the Subordinated Debt Securities and the Property
Trustee Account or as otherwise provided in this Declaration, legal title to all
assets of the Trust shall be vested in the Trust. A Holder shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
Section 3.6. Powers and Duties of the Regular Trustees. The Regular
-----------------------------------------
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:
(a) to execute, issue and sell the Preferred Securities and the
Common Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, there shall be no
interests in the Trust other than the Securities, and the issuance of Securities
shall be limited to a simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date [and any other date Preferred Securities
and Common Securities are sold pursuant to the overallotment option granted in
the Purchase Agreement];
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
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(i) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form S-3
prepared by the Sponsor in relation to the Preferred Securities,
including any pre- and post-effective amendments thereto and any
related registration statement to be filed pursuant to Rule 462(b) of
the Securities Act prepared by the Sponsor;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor as necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale;
(iii) execute and file an application prepared by the Sponsor,
at such time as determined by the Sponsor, to the New York Stock
Exchange or any other national stock exchange or the NASDAQ National
Market for listing upon notice of issuance of any Preferred
Securities;
(iv) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form 8-A
prepared by the Sponsor relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act, including any
amendments thereto prepared by the Sponsor;
(v) execute and enter into, and perform its obligations under,
the Purchase Agreement and other related agreements providing for the
sale of the Preferred Securities;
(vi) execute and deliver letters, documents, or instruments with
DTC relating to the Preferred Securities;
(vii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any
State in which the Sponsor has determined to qualify or register such
Preferred Securities for sale or resale, as the case may be; and
(viii) take all actions and perform such duties as may be
required of the Regular Trustees to open checking, deposit or similar
banking accounts as may be necessary in connection with the issuance
and sale of the Securities.
(c) in connection with the issue and sale of Common Securities, to
execute and enter into, and perform its obligations under, the Common Securities
Subscription Agreement dated as of [ ], 1999 between the Trust and the Sponsor
(the "Common Securities Subscription Agreement");
(d) to execute and enter into, and perform its obligations under, the
Subordinated Debt Securities Subscription Agreement dated as of [ ],
[1999]/[200_] between the Trust and the Sponsor (the "Subordinated Debt
Securities Subscription Agreement") to acquire the Subordinated Debt Securities
with the proceeds of the sale of the Preferred Securities and the Common
Securities; provided, however, that the Regular Trustees shall cause legal title
to the Subordinated Debt Securities to be owned by and held of record in the
name of the Property Trustee for the benefit of the Holders of the Preferred
Securities and the Common Securities;
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(e) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Special Event;
(f) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including for the
purposes of (S)316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Common Securities as to such
actions and applicable record dates;
(g) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the Securities and
this Declaration;
(h) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8, the Property Trustee has
the power to bring such Legal Action;
(i) to employ or otherwise engage employees and agents (who may
be designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(j) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(k) to give the certificate to the Property Trustee required by
(S) 314(a)(4) of the Trust Indenture Act which certificate may be executed by
any Regular Trustee;
(l) to incur expenses which are necessary or incidental to
carrying out any of the purposes of the Trust;
(m) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(n) to give prompt written notice to the Holders of the
Securities of any notice received from the Subordinated Debt Securities Issuer
of its election to defer payments of interest on the Subordinated Debt
Securities by extending the interest payment period under the Indenture;
(o) to take all action which may be necessary or appropriate for
the preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities or
to enable the Trust to effect the purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or
with applicable law, which the Regular Trustees determine in their discretion to
be necessary or desirable in carrying out the activities of the Trust as set out
in this Section 3.6 including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the Investment
Company Act;
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(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Subordinated Debt Securities
Issuer to ensure that the Subordinated Debt Securities will be treated
as indebtedness of the Subordinated Debt Securities Issuer for United
States federal income tax purposes, provided that such action relating
to this clause (iii) does not adversely affect the interests of
Holders; and
(q) to take all action necessary to cause all applicable tax
returns and tax information reports that are required to be filed with respect
to the Trust to be duly prepared and filed by the Regular Trustees, on behalf of
the Trust;
(r) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to Section 11.2 herein;
(s) to the extent provided in this Declaration, to cause the
winding up of the affairs of and liquidation of the Trust and the preparation,
execution and filing of the Certificate of Cancellation with the Secretary of
State of the State of Delaware; and
(t) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this Section
3.6 in a manner which is consistent with the purposes, functions and
characterization for United States federal income tax purposes of the Trust set
out in Section 3.3 and the Regular Trustees shall not take any action which is
inconsistent with or contrary to the purposes, functions and characterization
for United States federal income tax purposes of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
The Trust initially appoints the Property Trustee as transfer agent and
registrar for the Preferred Securities.
Section 3.7. Prohibition of Actions by the Trust and the Trustees.
----------------------------------------------------
(a) Notwithstanding any provision herein to the contrary, the
Trust shall not, and the Trustees (including the Property Trustee) shall cause
the Trust not to, engage in any activity other than as required or authorized by
this Declaration. In particular, the Trust shall not and the Trustees (including
the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Subordinated Debt Securities, but shall distribute all
such proceeds to Holders of Securities pursuant to the terms of this
Declaration and of the Securities;
(ii) acquire any assets other than the Subordinated Debt
Securities and any cash proceeds received with respect thereto;
(iii) possess Trust property for other than a Trust
purpose;
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(iv) make any loans or incur any indebtedness other than
loans represented by the Subordinated Debt Securities;
(v) possess any power or otherwise act in such a way as
to vary the assets of the Trust or the terms of the Securities in any
way whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as expressly provided in this Declaration
and Exhibit A hereto, (A) direct the time, method and place of
exercising any trust or power conferred upon the Subordinated Debt
Securities Trustee with respect to the Subordinated Debt Securities,
(B) waive any past default that is waivable under Section 513 of the
Indenture, (C) exercise any right to rescind or annul any declaration
that the principal of all the Subordinated Debt Securities shall be
due and payable or (D) consent to any amendment, modification or
termination of the Indenture or the Subordinated Debt Securities,
where such consent shall be required, unless the Trust shall have
received an opinion of counsel to the effect that such modification
will not cause more than an insubstantial risk that for United States
federal income tax purposes the Trust will not be classified as a
grantor trust.
Section 3.8. Powers and Duties of the Property Trustee.
-----------------------------------------
(a) The legal title to the Subordinated Debt Securities shall be
owned by and held of record in the name of the Property Trustee for the benefit
of the Trust and the Holders of the Securities. The right, title and interest
of the Property Trustee to the Subordinated Debt Securities shall vest
automatically in each Person who may hereafter be appointed as Property Trustee
as set forth in Section 5.6. Such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and
delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Subordinated Debt Securities to the Regular Trustees or to the
Delaware Trustee (if the Property Trustee does not also act as Delaware
Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing bank account (the "Property Trustee Account") in the name of
and under the exclusive control of the Property Trustee on behalf of
the Trust and the Holders of the Securities and, upon the receipt of
payments of funds made in respect of the Subordinated Debt Securities
held by the Property Trustee, deposit such funds into the Property
Trustee Account and make payments to the Holders of the Preferred
Securities and the Common Securities from the Property Trustee Account
in accordance with Section 6.1. Funds in the Property Trustee Account
shall be held uninvested until disbursed in accordance with this
Declaration. The Property Trustee Account shall be an account which is
maintained with a banking institution the rating on whose long term
unsecured indebtedness is at least equal to the rating assigned to the
Preferred Securities by a "nationally recognized statistical rating
organization," as that term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
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(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Preferred
Securities and the Common Securities to the extent the Subordinated
Debt Securities are redeemed or mature; and
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Preferred Securities and
the Common Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect the distribution of the
Subordinated Debt Securities to Holders of Securities upon the
Sponsor's election to dissolve the Trust in accordance with Section
8.1(a)(v).
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities and this Declaration.
(e) The Property Trustee shall have the power to take any Legal
Action which arises out of or in connection with an Event of Default or the
Property Trustee's duties and obligations under this Declaration, the Business
Trust Act or the Trust Indenture Act. If the Property Trustee fails to enforce
its rights under the Subordinated Debt Securities after a Holder of Preferred
Securities has made a written request, such Holder may, to the fullest extent
permitted by law, institute a legal proceeding against the Subordinated Debt
Securities Issuer, to enforce the Property Trustee's rights under the
Subordinated Debt Securities, without first instituting any legal proceeding
against the Property Trustee or any other Person. Notwithstanding the
foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Subordinated Debt Securities Issuer to pay
interest, premium, if any, or principal on the Subordinated Debt Securities on
the date such interest, premium, if any, or principal is otherwise payable (or
in the case of redemption, on the redemption date), then a Holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to
such Holder of the principal of, premium, if any, or interest on, the
Subordinated Debt Securities having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Direct
Action"). Notwithstanding any payments made to such Holder of Preferred
Securities by the Subordinated Debt Securities Issuer in connection with a
Direct Action, the Subordinated Debt Securities Issuer shall remain obligated to
pay the principal of, premium, if any, or interest on the Subordinated Debt
Securities held by the Trust or the Property Trustee of the Trust, and the
Subordinated Debt Securities Issuer shall be subrogated to the rights of the
Holder of such Preferred Securities with respect to payments on the Preferred
Securities. Except as provided in the preceding sentences and in the Preferred
Securities Guarantee, the Holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Subordinated
Debt Securities.
(f) No resignation of the Property Trustee shall be effective
unless either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders of Securities
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and
accepted that appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Subordinated Debt
Securities under the Indenture and, if an Event of Default occurs and is
continuing, the Property Trustee shall, for the benefit of Holders of the
Securities,
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enforce its rights as holder of the Subordinated Debt Securities subject to the
rights of the Holders pursuant to the terms of such Securities and this
Declaration.
(h) The Property Trustee may authorize one or more Persons (each,
a "Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to the Preferred Securities and any
such Paying Agent shall comply with (S) 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the powers or the authority of the Regular Trustees set forth in Section
3.6.
(j) The Property Trustee must exercise the powers set forth in
this Section 3.8 in a manner which is consistent with the purposes, functions
and characterization for United States federal income tax purposes of the Trust
set forth in Section 3.3 and the Property Trustee shall not take any action
which is inconsistent with or contrary to the purposes, functions and
characterization for United States federal income tax purposes of the Trust set
out in Section 3.3.
Section 3.9. Certain Duties and Responsibilities of the Property Trustee.
-----------------------------------------------------------
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing or waiver of all Events of Default that may have
occurred:
(i) shall undertake to perform only such duties as are
specifically set forth in this Declaration and in the terms of the
Securities, and no implied covenants, duties or obligations shall be
read into this Declaration against the Property Trustee; and
(ii) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Property Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Property Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Declaration.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Property Trustee shall exercise such of the rights
and powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise or use, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs;
(b) no provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit
Subsection (a) of this Section;
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(ii) the Property Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Securities at the time
outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee
under this Declaration including, without limitation, with respect to
the Securities; and
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if it shall have
reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Whether or not therein expressly so provided, every provision
of this Declaration relating to the conduct or affecting the liability of or
affording protection to the Property Trustee shall be subject to the provisions
of this Section.
Section 3.10 Certain Rights of the Property Trustee. Subject to the
--------------------------------------
provisions of Section 3.9:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any act of the Sponsor or the Regular Trustees contemplated
by this Declaration shall be sufficiently evidenced by an Officers' Certificate;
(c) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Sponsor or the
Regular Trustees;
(d) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any recording, refiling
or registration thereof);
(e) the Property Trustee may consult with counsel of its
selection and the written advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon. Such counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees;
(f) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration at the request or
direction of any Holder, unless such Holder shall
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have offered to the Property Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that might be incurred by it in
complying with such request or direction;
(g) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit and, if the Property Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Trust, personally or by agent or
attorney at the expense of the Sponsor and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(h) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities and the
signature of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action; and no third party shall be required to
inquire as to the authority of the Property Trustee to so act, or as to its
compliance with any of the terms and provisions of this Declaration, both of
which shall be conclusively evidenced by the Property Trustee's or its agent's
taking such action;
(i) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Securities which
instructions may only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be entitled to direct the Property
Trustee under the terms of the Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii) shall be protected
in acting in accordance with such instructions;
(j) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Property Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(k) the Property Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Declaration; and
(l) the rights, privileges, protections, immunities and benefits
given to the Property Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Property Trustee
in each of its capacities hereunder, and to each agent, custodian and other
person employed to act hereunder.
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Section 3.11. Delaware Trustee. Notwithstanding any other provision of
----------------
this Declaration other than Section 5.1, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Trustees described in this Declaration,
except as mandated by the Business Trust Act. Except as set forth in Section
5.1, the Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of (S) 3807(a) of the Business Trust Act.
Section 3.12. Execution of Documents. Except as otherwise required by the
----------------------
Business Trust Act, each of the Regular Trustees are authorized to execute on
behalf of the Trust any documents which the Regular Trustees have the power and
authority to execute pursuant to Section 3.6.
Section 3.13. Not Responsible for Recitals or Issuance of Securities. The
------------------------------------------------------
recitals contained in this Declaration and the Securities shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration or the
Securities.
Section 3.14. Duration of Trust. The Trust, unless dissolved pursuant to
-----------------
the provisions of Article VIII hereof, shall have existence for [ ] years from
the Closing Date.
Section 3.15. Mergers.
-------
(a) The Trust may not consolidate, amalgamate, merge with or
into, convert into or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, except as
described in Section 3.15(b) and (c) of this Declaration or as described in
Section 3 of Exhibit A;
(b) the Trust may, with the consent of a majority of the Regular
Trustees and without the consent of the Holders of the Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into,
convert into or be replaced by a trust organized as such under the laws of any
State; provided, that if the Trust is not the surviving entity:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Preferred Securities other
securities having substantially the same terms as the Preferred
Securities (the "Successor Securities") so long as the Successor
Securities rank the same as the Preferred Securities rank with
respect to Distributions and payments upon liquidation,
redemption and maturity and substitutes for the Common Securities
other securities having substantially the same terms as the
Common Securities (the "Successor Common Securities"), so long as
the Successor Common Securities rank the same as the Common
Securities rank with respect to Distributions and payments upon
liquidation, redemption, repayment and otherwise;
(ii) the Subordinated Debt Securities Issuer expressly
acknowledges a trustee of the Successor Entity which possesses the
same powers and duties as the Property Trustee as the Holder of the
Subordinated Debt Securities;
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(iii) such merger, consolidation, amalgamation, conversion
or replacement does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(iv) such merger, consolidation, amalgamation, conversion
or replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any Successor
Securities and any Successor Common Securities) in any material
respect (other than with respect to any dilution of the Holders'
interest in the new entity);
(v) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vi) prior to such merger, consolidation, amalgamation,
conversion or replacement, the Sponsor has received an opinion of
counsel to the Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation,
conversion or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the Securities
(including any Successor Securities and Successor common
securities) in any material respect (other than with respect to
any dilution of the Holders' interest in the new entity);
(B) following such merger, consolidation,
amalgamation, conversion or replacement, neither the Trust nor
the Successor Entity will be required to register as an
Investment Company; and
(C) following such merger, consolidation,
amalgamation, conversion or replacement, the Successor Entity
will continue to be classified as a grantor trust for United
States federal income tax purposes; and
(vii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities and Successor Common
Securities at least to the extent provided by the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively; and
(c) notwithstanding Section 3.15(b), the Trust shall not (except
with the written consent of Holders of 100% of the outstanding Preferred
Securities) consolidate, amalgamate, merge with or into, convert into or be
replaced by any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, conversion or replacement would cause the Trust or
Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes. Prior to such merger, consolidation,
amalgamation, conversion or replacement, the Sponsor shall have received an
opinion of tax counsel to the Trust, experienced in such matters to the effect
that following such merger, consolidation, amalgamation, conversion or
replacement, the Trust will continue to be classified as grantor trust for
United States federal income tax purposes.
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ARTICLE IV.
SPONSOR
Section 4.1. Sponsor's Purchase of Common Securities. On the Closing Date
---------------------------------------
[and any other date Preferred Securities and Common Securities are sold pursuant
to the overallotment option granted in the Purchase Agreement] the Sponsor will
purchase all the Common Securities issued by the Trust, at the same time as the
Preferred Securities are sold, in an amount at least equal to 3% of the capital
of the Trust.
Section 4.2. Responsibilities of the Sponsor. In connection with the
-------------------------------
issue and sale of the Preferred Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission, at
such time as determined by the Sponsor, a registration statement on Form S-3 in
relation to the Preferred Securities, including any amendments thereto;
(b) if necessary or desirable, to determine the States in which
to take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to take any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(c) if necessary or desirable, to prepare for filing by the Trust
an application, at such time as determined by the Sponsor, to the New York Stock
Exchange or any other national stock exchange or the NASDAQ National Market for
listing or quotation upon notice of issuance, of any Preferred Securities;
(d) if necessary or desirable, to prepare for filing by the Trust
with the Commission, at such time as determined by the Sponsor, a registration
statement on Form 8-A relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act, including any amendments thereto;
(e) if necessary or desirable, to negotiate the terms of the
Purchase Agreement providing for the sale of the Preferred Securities;
(f) execute and enter into the Purchase Agreement, the
Subordinated Debt Securities Subscription Agreement and the Common Securities
Subscription Agreement to be entered into with the Company; and
(g) prepare for execution and filing by the Trust of documents,
or instruments to be delivered to DTC relating to the Preferred Securities.
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Section 4.3. Right to Proceed. The Sponsor acknowledges the rights of
----------------
Holders to institute a Direct Action as set forth in Section 3.8(e) hereto.
ARTICLE V.
TRUSTEES
Section 5.1. Number of Trustees.
------------------
(a) The number of Trustees shall initially be five (5).
(b) At any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees.
(c) After the issuance of any Securities, the number of Trustees
may be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities; provided, however, that the number of
Trustees shall in no event be less than three (3); provided further that (1) if
required by the Business Trust Act, one Trustee (the "Delaware Trustee") shall
be: (a) a natural person who is a resident of the State of Delaware; or (b) if
not a natural person, an entity which has its principal place of business in the
State of Delaware and otherwise meets the requirements of applicable law
(provided that if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application); (2) there shall be at least two Trustees who are
employees or officers of, or are affiliated with the Sponsor; and (3) one
Trustee shall be the Property Trustee for so long as this Declaration is
required to qualify as an indenture under the Trust Indenture Act, and such
Trustee may also serve as Delaware Trustee if it meets the applicable
requirements.
Section 5.2. Delaware Trustee.
----------------
The initial Delaware Trustee under this Declaration shall be:
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attn: Corporate Trust Administration
Section 5.3. Property Trustee; Eligibility. The initial Property Trustee
-----------------------------
shall be:
The Bank of New York
101 Barclay Street, 21W
New York, New York 10286
Attn: Corporate Trust Administration
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
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(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State thereof or of
the District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination
by Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority referred to above, then for the purposes of this Section
5.3(a)(ii), the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of (S) 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in (S) 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of (S) 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee, the Common Securities
Guarantee and the Indenture shall be deemed to be specifically described in this
Declaration and the Indenture for purposes of clause (i) of the first proviso
contained in (S) 310(b) of the Trust Indenture Act.
Section 5.4. Qualifications of Regular Trustees and Delaware Trustee
-------------------------------------------------------
Generally.
- ---------
Each Regular Trustee and the Delaware Trustee (unless the Property Trustee
also acts as Delaware Trustee) shall be either a natural person who is at least
21 years of age or a legal entity which shall act through one or more Authorized
Officers.
Section 5.5. Regular Trustees. The initial Regular Trustees under this
----------------
Declaration shall be:
Neal E. Schmale
Frank H. Ault
Charles A. McMonagle
c/o Sempra Energy
101 Ash Street
San Diego, CA 92101
(a) Except as expressly set forth in this Declaration and except
if a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act or applicable law, any
Regular Trustee is authorized to execute on
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behalf of the Trust any documents which the Regular Trustees have the power and
authority to cause the Trust to execute pursuant to Section 3.6.
Section 5.6 Appointment, Removal and Resignation of Trustees.
------------------------------------------------
(a) Subject to Section 5.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred and be
continuing after the issuance of any Securities by vote of the Holders
of a Majority in liquidation amount of the Common Securities voting as
a class at a meeting of the Holders of the Common Securities; and
(iii) if an Event of Default shall have occurred and be
continuing after the issuance of any Securities, with respect to the
Property Trustee or the Delaware Trustee, by vote of Holders of a
Majority in liquidation amount of the Preferred Securities voting as a
class at a meeting of Holders of the Preferred Securities.
(b)
(i) The Trustee that acts as Property Trustee shall not
be removed in accordance with Section 5.6(a) until a Successor
Property Trustee possessing the qualifications to act as Property
Trustee under Section 5.3 (a "Successor Property Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Property Trustee and delivered to the
Regular Trustees and the Sponsor.
(ii) So long as a Delaware Trustee is required pursuant to
Section 5.1, the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until such Trustee's death, bankruptcy,
dissolution, termination, removal or resignation. Any Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective (A) until a Successor Property
Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Property Trustee and delivered
to the Trust, the Sponsor and the resigning Property Trustee; or (B)
until the assets of the Trust have been completely liquidated and the
proceeds thereof distributed to the holders of the Securities; and
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(ii) so long as a Delaware Trustee is required pursuant to
Section 5.1, no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee (so long as a Delaware
Trustee is required pursuant to Section 5.1) or Successor Property Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery of an instrument of resignation or
removal, the Property Trustee or Delaware Trustee resigning or being removed may
petition, at the expense of the Sponsor, any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor Delaware Trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
Section 5.7. Vacancies Among Trustees. If a Trustee ceases to hold office
------------------------
for any reason and the number of Trustees is not reduced pursuant to Section
5.1, or if the number of Trustees is increased pursuant to Section 5.1, a
vacancy shall occur. A resolution certifying the existence of such vacancy by a
majority of the Regular Trustees shall be conclusive evidence of the existence
of such vacancy. The vacancy shall be filled with a Trustee appointed in
accordance with Section 5.6.
Section 5.8. Effect of Vacancies. The death, resignation, retirement,
-------------------
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to
perform the duties of a Trustee, or any one of them, shall not operate to
dissolve, terminate or annul the Trust. Whenever a vacancy in the number of
Regular Trustees shall occur, until such vacancy is filled by the appointment of
a Regular Trustee in accordance with Section 5.6, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
Section 5.9. Meetings. Meetings of the Regular Trustees shall be held
--------
from time to time upon the call of any Regular Trustee. Regular meetings of the
Regular Trustees may be held at a time and place fixed by resolution of the
Regular Trustees. Notice of any in-person meetings of the Regular Trustees shall
be hand delivered or otherwise delivered in writing (including by facsimile,
with a hard copy by overnight courier) not less than 48 hours before such
meeting. Notice of any telephonic meetings of the Regular Trustees or any
committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before a meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Declaration, any action of the Regular Trustees may be taken
at a meeting by vote of a majority of the Regular Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous written
consent of the Regular Trustees.
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Section 5.10. Delegation of Power.
-------------------
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section 3.6
including any registration statement or amendment thereto filed with the
Commission or making any other governmental filing.
(b) The Regular Trustees shall have power to delegate from time
to time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
Section 5.11. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Property Trustee or the Delaware Trustee, as the
case may be, may be merged or converted or with which either may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be bound by this Declaration, or any corporation succeeding to all
or substantially all the corporate trust business of the Property Trustee or the
Delaware Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee, as the case may be, hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
ARTICLE VI.
DISTRIBUTIONS
Section 6.1. Distributions. Holders shall receive Distributions in
accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in their respective
terms. If and to the extent that the Subordinated Debt Securities Issuer makes a
payment of interest (including Additional Interest (as defined in the
Indenture)), premium, if any, and principal on the Subordinated Debt Securities
held by the Property Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders. In the event the Sponsor shall defer any payment of
principal, premium, if any, or interest on the Subordinated Debt Securities, the
Trust shall, in like manner, defer payments of Distributions on the Securities,
and Additional Distributions shall accrue on such Securities for so long as the
payment of principal, premium, if any, or interest on the Subordinated Debt
Securities is deferred.
ARTICLE VII.
ISSUANCE OF SECURITIES
Section 7.1. General Provisions Regarding Securities.
---------------------------------------
(a) The Regular Trustees shall, on behalf of the Trust, issue one
class of preferred securities representing undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Exhibit A and
incorporated herein by reference (the "Preferred Securities"), and one class of
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common securities representing undivided beneficial interests in the assets of
the Trust having such terms as are set forth in Exhibit A and incorporated
herein by reference (the "Common Securities"). The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities;
(b) the Certificates shall be signed on behalf of the Trust by the
Regular Trustees (or if there are more than two Regular Trustees by any two of
the Regular Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee. Typographical and
other minor errors or defects in any such reproduction of any such signature
shall not affect the validity of any Certificate. In case any Regular Trustee
of the Trust who shall have signed any of the Certificates shall cease to be
such Regular Trustee before the Certificate so signed shall be delivered by the
Trust, such Certificate nevertheless may be delivered as though the person who
signed such Certificate had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who shall at
the actual date of execution of such Security, be the Regular Trustees of the
Trust, although at the date of the execution and delivery of the Declaration any
such person was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by their execution thereof, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation of
any stock exchange on which Securities may be listed, or to conform to usage. A
Preferred Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee. The signature
shall be conclusive evidence that the Preferred Security has been authenticated
under this Declaration. Upon a written order of the Trust signed by one Regular
Trustee, the Property Trustee shall authenticate the Preferred Securities for
original issue. The Property Trustee may appoint an authenticating agent
acceptable to the Trust to authenticate Preferred Securities. An authenticating
agent may authenticate Preferred Securities whenever the Property Trustee may do
so. Each reference in this Declaration to authentication by the Property
Trustee includes authentication by such agent. An authenticating agent has the
same rights as the Property Trustee to deal with the Trust or an Affiliate;
(c) the consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust;
(d) upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
nonassessable; and
(e) every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by this Declaration.
ARTICLE VIII.
DISSOLUTION AND TERMINATION OF TRUST
Section 8.1. Dissolution and Termination of Trust.
------------------------------------
(a) The Trust shall dissolve and its affairs shall be wound up, upon
the earliest to occur of the following:
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(i) upon the bankruptcy of the Sponsor or the Holder of the
Common Securities;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor, upon the consent (other than
in connection with a dissolution of the Trust pursuant to clause (v)
of this Section 8.1(a)) of the Holders of at least a Majority in
liquidation amount of the Securities, voting together as a single
class, and the consent of the Sponsor, to dissolve the Trust, or the
revocation of the articles of incorporation of the Sponsor or the
Holder of the Common Securities and the expiration of 90 days after
the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Sponsor or the Trust or the Holder of the Common Securities;
(iv) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the
Securities;
(v) upon the written direction to the Property Trustee from the
Sponsor at any time to dissolve the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law,
the distribution of Subordinated Debt Securities to Holders in
exchange for the Securities, subject to the Regular Trustees' receipt
of an opinion of counsel experienced in such matters to the effect
that the Holders of the Preferred Securities will not recognize any
income, gain or loss for United States federal income tax purposes as
a result of the dissolution of the Trust and such distribution to
Holders; or
(vi) before the issuance of any Securities, with the consent of
all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) or dissolution pursuant to Section 3.14 and upon
the completion of the winding up of the Trust, one of the Regular Trustees (each
Regular Trustee being hereby authorized to take such action) shall file a
certificate of cancellation with the Secretary of State of the State of Delaware
terminating the Trust.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX.
TRANSFER OF INTERESTS
Section 9.1. Transfer of Securities.
----------------------
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void;
(b) subject to this Article IX, Preferred Securities shall be freely
transferable; and
(c) subject to this Article IX, the Sponsor and any Related Party may
only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor, or as contemplated by Article VIII of the Indenture; provided that, any
such transfer shall not violate the Securities Act and is subject to the
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condition precedent that the transferor obtain the written opinion of counsel
experienced in such matters that such transfer would not cause more than an
insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company required to
register under the Investment Company Act or the transferee would
become an Investment Company required to register under the Investment
Company Act.
(d) Each Common Security that bears or is required to bear the legend
set forth in this Section 9.1(d) shall be subject to the restrictions on
transfer provided in the legend set forth in this Section 9.1(d), unless such
restrictions on transfer shall be waived by the written consent of the Regular
Trustees, and the Holder of each such Common Security, by such security holder's
acceptance thereof, agrees to be bound by such restrictions on transfer. As
used in this Section 9.1(d) and in Section 9.1(c), the term "transfer"
encompasses any sale, pledge, transfer or other disposition of any such Common
Security.
Any certificate evidencing a Common Security shall bear a legend in
substantially the following form, unless otherwise agreed by the Regular
Trustees (with written notice thereof to the Property Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE
REGISTERED UNDER OR ARE EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT.
THE TRANSFER OF THE SECURITY EVIDENCED HEREBY IS ALSO SUBJECT TO THE
RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO BELOW.
Section 9.2. Transfer of Certificates.
------------------------
(a) The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges which may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Certificate surrendered for registration of transfer shall be canceled by
the Regular Trustees. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon the receipt by
such transferee of a Certificate. By acceptance of a Certificate, each
transferee shall be deemed to have agreed to be bound by this Declaration and
the documents incorporated by reference herein.
(b) Notwithstanding any other provisions of this Declaration, a
Global Certificate may not be transferred as a whole, except by the Clearing
Agency to a nominee of the Clearing Agency or by the Clearing Agency or any such
nominee to a successor Clearing Agency or a nominee of such successor Clearing
Agency.
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Section 9.3. Deemed Security Holders. The Trustees may treat the Person
-----------------------
in whose name any Certificate shall be registered on the books and records of
the Trust as the sole holder of such Certificate and of the Securities
represented by such Certificate for purposes of receiving Distributions and for
all other purposes whatsoever and, accordingly, shall not be bound to recognize
any equitable or other claim to or interest in such Certificate or in the
Securities represented by such Certificate on the part of any Person, whether or
not the Trustees shall have actual or other notice thereof.
Section 9.4. Book Entry Interests.
--------------------
(a) So long as Preferred Securities are eligible for book entry
settlement with the Clearing Agency or unless otherwise required by law, all
Preferred Securities that are so eligible may be represented by one or more,
fully registered, global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Certificates shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of
DTC, and no Preferred Security Beneficial Owner will receive a definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.7. The transfer and exchange of beneficial interests in any such Security in
global form shall be effected through the Clearing Agency in accordance with
this Declaration and the procedures of the Clearing Agency therefor.
(b) Except as provided below, Beneficial Owners of a Preferred
Security in global form shall not be entitled to have certificates registered in
their names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered Holder of such
Preferred Security in global form.
(c) Any Global Certificate may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with
the provisions of this Declaration as may be required by the Clearing Agency, by
any national securities exchange or by the National Association of Securities
Dealers, Inc. as may be required to comply with any applicable law or any
regulation thereunder or with the rules and regulations of any securities
exchange or interdealer quotation system upon which the Preferred Securities may
be listed or traded or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Preferred Securities are subject.
(d) Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been issued
to the Preferred Security Beneficial Owners pursuant to Section 9.7:
(i) the provisions of this Section 9.4 shall be in full force
and effect with respect to such Preferred Securities;
(ii) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including
the payment of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificates and shall
have no obligation to the Preferred Security Beneficial Owners;
(iii) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions
of this Section 9.4 shall control; and
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(iv) the rights of the Beneficial Owners of Preferred Securities
in global form shall be exercised only through the Clearing Agency and
shall be limited to those established by law and agreements between
such Preferred Security Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants. The Clearing Agency will
make book entry transfers among the Clearing Agency Participants and
receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will make book
entry transfers among the Clearing Agency Participants, provided, that
solely for the purposes of determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter
provided for in this Declaration, so long as Definitive Preferred
Security Certificates have not been issued, the Trustees may
conclusively rely on, and shall be protected in relying on, any
written instrument (including a proxy) delivered to the Trustees by
the Clearing Agency setting forth the Preferred Securities Beneficial
Owners' votes or assigning the right to vote on any matter to any
other Persons either in whole or in part.
Notwithstanding any other provisions of this Declaration (other than the
provisions set forth in this Section 9.4(c)), a Preferred Security in global
form may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or by a nominee of the Clearing Agency to the
Clearing Agency or another nominee to a successor Clearing Agency or a nominee
of such successor Clearing Agency.
Section 9.5. Notices to Clearing Agency. Whenever a notice or other
--------------------------
communication to the Preferred Security Holders is required under this
Declaration, unless and until Definitive Preferred Security Certificates shall
have been issued to the Preferred Security Beneficial Owners pursuant to Section
9.7, the Trustees shall give all such notices and communications, specified
herein to be given to the Preferred Security Holders, to the Clearing Agency,
and shall have no notice obligations to the Preferred Security Beneficial
Owners.
Section 9.6. Appointment of Successor Clearing Agency. If any Clearing
----------------------------------------
Agency notifies the Trust that it is unwilling or unable to continue its
services as securities depositary with respect to the Preferred Securities if
such Clearing Agency ceases to perform such services, or if at any time such
Clearing Agency ceases to be a clearing agency registered as such under the
Exchange Act when such Clearing Agency is required to be so registered to act as
such depositary, then the Regular Trustees may, in their sole discretion,
appoint a successor Clearing Agency with respect to such Preferred Securities.
Section 9.7. Definitive Preferred Security Certificates Under Certain
--------------------------------------------------------
Circumstances. If:
- -------------
(a) a Clearing Agency notifies the Trust that it is unwilling or
unable to continue its services as securities depositary with respect to the
Preferred Securities, if such Clearing Agency ceases to perform such services,
or if at any time such Clearing Agency ceases to be a clearing agency registered
as such under the Exchange Act when such Clearing Agency is required to be so
registered to act as such depositary, and a successor Clearing Agency is not
appointed within 90 days after such discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees (with the consent of the Sponsor) in their
sole discretion determine that the Preferred Securities in global form shall be
exchanged for certificated Preferred Securities;
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then:
(i) Definitive Preferred Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust with respect
to such Preferred Securities; and
(ii) upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered
to Preferred Security Beneficial Owners of such Preferred Securities
in accordance with the instructions of the Clearing Agency. Neither
the Trustees nor the Trust shall be liable for any delay in delivery
of such instructions and each of them may conclusively rely on and
shall be protected in relying on, said instructions of the Clearing
Agency. The Definitive Preferred Security Certificates shall be
printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such
legends or endorsements as the Regular Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which Preferred Securities may be listed, or to
conform to usage.
At such time as all interests in a Preferred Security in global form have
been redeemed, exchanged, repurchased or canceled, such Preferred Security in
global form shall be, upon receipt thereof, canceled by the Trust in accordance
with standing procedures and instructions of the Clearing Agency.
Section 9.8. Mutilated, Destroyed, Lost or Stolen Certificates If:
-------------------------------------------------
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Property Trustee or the Regular
Trustees such security or indemnity as may be required by them to keep each of
them harmless,
then:
in the absence of notice that such Certificate shall have been acquired by a
bona fide purchaser, the Property Trustee or any Regular Trustee on behalf of
the Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 9.8, the Property Trustee or the Regular Trustees may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Certificate issued
pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
ARTICLE X.
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LIMITATION OF LIABILITY OF HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
Section 10.1. Liability.
---------
(a) Except as expressly set forth in this Declaration, the Preferred
Securities Guarantee, the Common Securities Guarantee and the terms of the
Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities, which shall be made solely from assets of the Trust; or
(ii) required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to (S) 3803(a) of the Business Trust Act, the Holders of
the Securities, in their capacity as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
Section 10.2. Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence (or, in the case of
the Property Trustee, except as otherwise set forth in Section 3.9) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
Section 10.3. Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity (other than
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
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(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provide that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
Section 10.4. Indemnification.
---------------
(a) To the fullest extent permitted by law, the Sponsor shall
fully indemnify each Indemnified Person for, and hold each Indemnified Person
harmless against, any and all loss, liability, expense, damage or claim incurred
by such Indemnified Person by reason of any act or omission performed or omitted
by such Indemnified Person without negligence or bad faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by this Declaration;
(b) reasonable expenses (including reasonable legal fees and
expenses) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the Sponsor
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Sponsor of an undertaking by or on behalf of the Indemnified
Person to repay such amount if it shall be determined that the Indemnified
Person is not entitled to be indemnified as authorized in Section 10.4(a); and
(c) the provisions of this Section 10.4 shall survive the termination
of this Declaration or resignation or removal of any Trustee.
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Section 10.5. Outside Businesses. Any Covered Person, the Sponsor, the
------------------
Delaware Trustee and the Property Trustee (subject to Section 5.3(c)) may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the Holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE XI.
ACCOUNTING
Section 11.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Trust
-----------
shall be the calendar year, or such other year as is required by the Code.
Section 11.2. Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Trust shall
keep, or cause to be kept, full books of account, records and supporting
documents, which shall reflect in reasonable detail, each transaction of the
Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon, as of the end of each
Fiscal Year, by a firm of independent certified public accountants selected by
the Regular Trustees of the Trust.
(b) The Trust shall cause to be duly prepared and delivered to each
of the Holders of Securities, any annual United States federal income tax
information statement, required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Trust shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal Year of the Trust.
(c) The Trust shall cause to be duly prepared and filed with the
appropriate taxing authority, an annual United States federal income tax return,
on a Form 1041 or such other form required by United States federal income tax
law, and any other annual income tax returns required to be filed by the Trust
on behalf of the Trust with any state or local taxing authority.
Section 11.3. Banking. The Trust shall maintain one or more bank accounts
-------
in the name and for the sole benefit of the Trust; provided, however, that all
payments of funds in respect of the Subordinated Debt Securities held by the
Property Trustee shall be made directly to the Property Trustee Account
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and no other funds of the Trust shall be deposited in the Property Trustee
Account. The sole signatories for such accounts shall be designated by the
Regular Trustees; provided, however, that the Property Trustee shall designate
the signatories for the Property Trustee Account.
Section 11.4 Withholding. The Trust shall comply with all withholding
-----------
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Trust shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over-withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII.
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.
----------
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and only
by, a written instrument approved and executed by the Regular Trustees (or, if
there are more than two (2) Regular Trustees, a majority of the Regular
Trustees); provided, however, that:
(i) no amendment shall be made, and any such purported
amendment shall be void and ineffective, to the extent the result
thereof would be to:
(A) cause the Trust to fail to be classified for the
purposes of United States federal income taxation as a grantor
trust;
(B) affect the powers or the rights of the Property Trustee
or the Delaware Trustee without the written consent of the
Property Trustee or the Delaware Trustee, as the case may be; or
(C) cause the Trust to be deemed to be an Investment Company
which is required to be registered under the Investment Company
Act;
(ii) at such time after the Trust has issued any Securities
which remain outstanding, any amendment which would adversely affect
the rights, privileges or preferences of any Holder of Securities may
be effected only with such additional requirements as may be set forth
in the terms of such Securities;
(iii) Section 9.1 (c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
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(iv) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities;
and
(v) the rights of the Holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and
remove Trustees shall not be amended without the consent of the
Holders of a Majority in liquidation amount of the Common Securities.
(b) Notwithstanding Section 12.1(a)(ii), this Declaration may be
amended from time to time by the Holders of a Majority in liquidation amount of
the Common Securities and the Property Trustee, without the consent of the
Holders of the Preferred Securities, to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision or to
make any other provisions with respect to matters or questions arising
under this Declaration, which shall not be inconsistent with the other
provisions of this Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to ensure the Trust's classification as a grantor trust for
United States federal income tax purposes; and
(v) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure that the
Trust will not be required to register as an investment company under
the Investment Company Act.
(c) Subject to Section 12.1(a), this Declaration may be amended by
the Holders of a Majority in liquidation amount of the Common Securities and the
Property Trustee if:
(i) the Holders of a Majority in liquidation amount of the
Preferred Securities consent to such amendment; and
(ii) the Regular Trustees have received an opinion of counsel
experienced in such matters to the effect that such amendment or the
exercise of any power granted to the Regular Trustees in accordance
with such amendment will not affect the Trust's status as a grantor
trust for United States federal income tax purposes or the Trust's
exemption from status as an "investment company" under the Investment
Company Act.
(d) Any amendments of this Declaration pursuant to Section 12.1(b)
shall become effective when notice thereof is given to Holders of Securities.
Any other amendments of this Declaration shall become immediately effective,
however, within ten (10) days of such effective date notice must be given to
Holders of Securities, which notice may be given by press release or other
similar widely disseminated means.
Section 12.2. Meetings of the Holders of Securities; Action by Written
--------------------------------------------------------
Consent.
- -------
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider and act on any matter on which Holders of such class of
Securities are entitled to act under the terms of this Declaration, the terms of
the Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading. The Regular Trustees shall call
a meeting of the Holders of such class of Holders,
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if directed to do so by the Holders of at least 25% in liquidation amount of the
Securities of such class. Such direction shall be given by delivering to the
Regular Trustees one or more calls in a writing stating that the signing Holders
of Securities wish to call a meeting and indicating the general or specific
purpose for which the meeting is to be called. Any Holders of Securities calling
a meeting shall specify in writing the Security Certificates held by the Holders
of Securities exercising the right to call a meeting and only those Securities
specified shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least seven
(7) days and not more than 60 days before the date of such meeting.
Whenever a vote, consent or approval of the Holders of Securities is
permitted or required under this Declaration, the terms of the
Securities or the rules of any stock exchange on which the Preferred
Securities are listed or admitted for trading, such vote, consent or
approval may be given at a meeting of the Holders of Securities. Any
action that may be taken at a meeting of the Holders of Securities may
be taken without a meeting and without prior notice if a consent in
writing setting forth the action so taken is signed by the Holders of
Securities owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities having a right
to vote thereon were present and voting. Prompt notice of the taking
of action without a meeting shall be given to the Holders of
Securities entitled to vote who have not consented in writing. The
Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General Corporation Law
of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) except to the extent that the Business Trust Act, the Trust
Indenture Act, this Declaration, the terms of the Securities or the
listing rules of any stock exchange on which the Preferred Securities
are then listed or trading otherwise provides, the Regular Trustees,
in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including notice of the
time, place or purpose of any meeting at which any matter is to be
voted on by any Holders of Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a record
date, quorum
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requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII.
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND
THE DELAWARE TRUSTEE
Section 13.1. Representations and Warranties of the Property Trustee. The
------------------------------------------------------
Trustee which acts as initial Property Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Property Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) the Property Trustee is a New York banking corporation with power
and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration;
(b) the Declaration has been duly executed and delivered by the
Property Trustee, and it constitutes a legal, valid and binding obligation of
the Property Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law);
(c) the execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the Articles
of Organization or Bylaws of the Property Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any New York State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the Declaration.
Section 13.2. Representations and Warranties of the Delaware Trustee. The
------------------------------------------------------
Trustee which acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a Delaware banking corporation, duly
organized, validly existing and in good standing;
(b) the Delaware Trustee satisfies the requirements set forth in
Section 5.1(c) and has the power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Declaration and,
if it is not a natural person, is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization;
(c) this Declaration under Delaware law constitutes a legal, valid
and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
39
<PAGE>
(d) no consent, approval or authorization of, or registration with or
notice to, any Delaware State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration;
and
(e) the execution, delivery and performance of this Declaration by
the Delaware Trustee do not conflict with, or constitute a violation or breach
of, the charter or bylaws of the Delaware Trustee.
ARTICLE XIV.
MISCELLANEOUS
Section 14.1. Notices. All notices provided for in this Declaration shall
-------
be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, postage prepaid, as
follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Securities):
Sempra Energy Capital Trust[ ]
c/o Sempra Energy
101 Ash Street
San Diego, California 92101
Attention: General Counsel
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as the Delaware Trustee may give notice of to
the Holders of the Securities):
The Bank of New York (Delaware)
White Clay Center, Route 273
Newark, Delaware 19711
Attn: Corporate Trust Administration
(c) if given to the Property Trustee, at the mailing address set
forth below (or such other address as the Property Trustee may give notice of to
the Holders of the Securities):
The Bank of New York
101 Barclay Street, 21W
New York, New York 10286
Attention: Corporate Trust Administration
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
Sempra Energy
101 Ash Street
San Diego, California 92101
Attention: Vice President, Treasurer
40
<PAGE>
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
(f) All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed except that if a notice
or other document is refused delivery or cannot be delivered because of a
changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
Section 14.2. Governing Law. This Declaration and the rights of the
-------------
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of Delaware and all rights and remedies shall be governed by
such laws without regard to principles of conflict of laws.
Section 14.3. Intention of the Parties. It is the intention of the
------------------------
parties hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
Section 14.4. Headings. Headings contained in this Declaration are
--------
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
Section 14.5. Successors and Assigns. Whenever in this Declaration any of
----------------------
the parties hereto is named or referred to, the successors and assigns of such
party shall be deemed to be included, and all covenants and agreements in this
Declaration by the Sponsor and the Trustees shall bind and inure to the benefit
of their respective successors and assigns, whether so expressed.
Section 14.6 Partial Enforceability. If any provision of this
----------------------
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
Section 14.7 Counterparts. This Declaration may contain more than one
------------
counterpart of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
Neal E. Schmale
as Regular Trustee
________________________________________
Frank H. Ault,
as Regular Trustee
________________________________________
Charles A. McMonagle,
as Regular Trustee
________________________________________
The Bank of New York (Delaware),
as Delaware Trustee
By: ___________________________________
Name: _________________________________
Title: ________________________________
The Bank of New York,
as Property Trustee
By: ___________________________________
Name: _________________________________
Title: ________________________________
Sempra Energy,
as Sponsor
By: ___________________________________
Name: _________________________________
Title: ________________________________
42
<PAGE>
EXHIBIT A
TERMS OF
[ ]% PREFERRED SECURITIES
[ ]% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust,
dated as of [ ], [1999]/[200_] (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
----------------------
a. Preferred Securities. [ ] Preferred Securities [(including [ ]
--------------------
Preferred Securities of the Trust sold pursuant to an overallotment option
provided for in the Purchase Agreement)] of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of [ ] Dollars ($[ ])
[(plus up to an additional [ ] Preferred Securities with an aggregate
liquidation amount with the respect to the assets of the Trust of [ ] Dollars
($[ ]) solely to cover overallotments, as provided for in the Purchase Agreement
(the "Additional Preferred Securities")),] and a liquidation amount with respect
to the assets of the Trust of $[ ] per Preferred Security, are hereby designated
for the purposes of identification only as "[ ]% Preferred Securities" (the
"Preferred Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form attached hereto as Annex
I, with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice or to conform to the rules of any
stock exchange on which the Preferred Securities are listed.
b. Common Securities. [ ] Common Securities [(including [ ] Common
-----------------
Securities of the Trust sold pursuant to an overallotment option)] of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
[ ] Dollars ($[ ]) [(plus up to an additional [ ] Common Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the Trust of
[ ] Dollars ($[ ])] to meet capital requirements of the Trust in the event of an
issuance of Additional Preferred Securities), and a liquidation amount with
respect to the assets of the Trust of $[ ] per Common Security, are hereby
designated for the purposes of identification only as "[ ]% Common Securities"
(the "Common Securities"). The Common Security Certificates evidencing the
Common Securities shall be substantially in the form attached hereto as Annex
II, with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
2. Distributions.
-------------
a. Periodic Distributions payable on each Security will be fixed at
a rate per annum of [ ]% (the "Coupon Rate") of the stated liquidation amount of
$[ ] per Security, such rate being the rate of interest payable on the
Subordinated Debt Securities to be held by the Property Trustee. Distributions
in arrears for more than one quarterly period will bear interest thereon at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used in these terms includes such periodic cash distributions
and any such interest payable unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Subordinated Debt
Securities held by the Property Trustee. The amount of Distributions payable for
any period will be computed for any full quarterly Distribution period on the
basis of a 360-day year of twelve 30-day months, and for any period shorter
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than a full quarterly Distribution period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days elapsed
in such a 30-day month.
b. Distributions on the Securities will be cumulative, will accrue
from [ ], [1999]/[200_] and will be payable quarterly in arrears, on [ ], [ ], [
] and [ ] of each year, commencing on [ ], [1999]/[200_], except as otherwise
described below. The Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period from time to
time on the Subordinated Debt Securities for a period not exceeding 20
consecutive quarterly periods (each, an "Extension Period") but not beyond the
maturity date of the Subordinated Debt Securities and, as a consequence of such
extension, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate during any such Extension
Period. Prior to the termination of any such Extension Period, the Subordinated
Debt Securities Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarterly periods. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Subordinated Debt Securities Issuer may commence a new Extension
Period, subject to the above requirements.
c. Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. While the Preferred Securities remain in book entry only form,
the relevant record dates shall be one Business Day prior to the relevant
payment dates which payment dates correspond to the interest payment dates on
the Subordinated Debt Securities. Subject to any applicable laws and
regulations and the provisions of the Declaration, each such payment in respect
of the Preferred Securities will be made as described under the heading
["Certain Terms of the Preferred Securities -- Book Entry-Only Issuance -- The
Depository Trust Company"] in the Prospectus Supplement dated [ ], [1999]/[200_]
(the "Prospectus Supplement") to the Prospectus dated [ ], [1999]/[200_] (as so
supplemented the "Prospectus") of the Trust included in the Registration
Statement on Form S-3 of the Sponsor, the Trust and certain other business
trusts. The relevant record dates for the Common Securities shall be the same
record dates as for the Preferred Securities. If the Preferred Securities shall
not continue to remain in book entry only form, the relevant record dates for
the Preferred Securities, shall conform to the rules of any securities exchange
on which the securities are listed and, if none, shall be selected by the
Regular Trustees, which dates shall be at least one Business Day but less than
60 Business Days before the relevant payment dates, which payment dates
correspond to the interest payment dates on the Subordinated Debt Securities.
Distributions payable on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Subordinated Debt Securities
Issuer having failed to make a payment under the Subordinated Debt Securities,
will cease to be payable to the Person in whose name such Securities are
registered on the relevant record date, and such defaulted Distribution will
instead be payable to the Person in whose name such Securities are registered on
the special record date or other specified date determined in accordance with
the Indenture. If any date on which Distributions are payable on the Securities
is not a Business Day, then payment of the Distribution payable on such date
will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
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d. In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any voluntary or involuntary dissolution of the Trust, the
Holders of the Securities on the date of the dissolution will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, an amount equal to the aggregate of the stated liquidation amount of
$[ ] per Security plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, Subordinated Debt Securities in an aggregate
principal amount equal to the aggregate stated liquidation amount of such
Securities, with an interest rate equal to the Coupon Rate of, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Securities, shall be distributed on a Pro Rata basis to
the Holders of the Securities in exchange for such Securities, after paying or
making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act.
If, upon any such dissolution, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
---------------------------
a. Upon the repayment of the Subordinated Debt Securities in whole or
in part, whether at maturity or upon redemption, the proceeds from such
repayment or payment shall be simultaneously applied to redeem Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Subordinated Debt Securities so repaid or redeemed, at the redemption price for
the Subordinated Debt Securities, payable in cash (the "Redemption Price").
Holders will be given not less than 30 nor more than 60 days notice of such
redemption.
b. If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be as described in
Paragraph 4(h)(ii) below.
c. The Subordinated Debt Securities are redeemable, in whole or in
part, at the option of the Subordinated Debt Securities Issuer, on or after [ ],
[1999]/[200_], at a redemption price equal to [100%] of the principal amount per
Subordinated Debt Securities, plus, in each case, accrued and unpaid interest
thereon at the date of the redemption for the Debentures.
d. If, at any time, a Tax Event or an Investment Company Event (each
as defined below, and each a "Special Event") shall occur and be continuing, the
Subordinated Debt Securities Issuer shall have the right, upon not less than 30
nor more than 60 days notice, to redeem the Subordinated Debt Securities in
whole or in part, for cash within 90 days following the occurrence of such
Special Event, at a redemption price equal to [100%] of the principal amount to
be redeemed plus any accrued and unpaid interest thereon to the date of such
redemption and, following such redemption, Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Subordinated
Debt Securities so redeemed shall be redeemed by the Trust at the Redemption
Price on a
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<PAGE>
Pro Rata basis in accordance with paragraph 8 hereof. The Common Securities will
be redeemed Pro Rata with the Preferred Securities, except that if an Event of
Default has occurred and is continuing, the Preferred Securities will have
priority over the Common Securities with respect to payment of the Redemption
Price.
e. The following terms used herein shall be defined as
follows:
(i) "Investment Company Event" means that the Trust shall have
received an opinion of counsel experienced in practice under the
Investment Company Act that, as a result of the occurrence of a change
in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency
or regulatory authority (a "Change in 1940 Act Law"), there is more
than an insubstantial risk that the Trust is or will be considered an
Investment Company which is required to be registered under the
Investment Company Act, which Change in 1940 Act Law becomes effective
on or after the date of the Prospectus Supplement.
(ii) "Tax Event" means that the Trust shall have received an
opinion of counsel experienced in such matters to the effect that on
or after the date of the Prospectus Supplement, as a result of (a) any
amendment to, or change (including any announced proposed change) in,
the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority therefore or therein, or (b)
any amendment to, or change in, an interpretation or application of
any such laws or regulations by any legislative body, court,
governmental agency or regulatory authority, which amendment or change
is enacted, promulgated, issued, proposed or announced or which
interpretation or pronouncement is issued, proposed or announced or
which action is taken, in each case on or after the date of the
Prospectus Supplement, there is more than an insubstantial risk that
(i) the Trust is or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to
interest accrued or received on the Subordinated Debt Securities, (ii)
the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of taxes, duties or other
governmental charges, or (iii) interest payable by the Subordinated
Debt Securities Issuer to the Trust on the Subordinated Debt
Securities is not, or within 90 days of the date of such opinion will
not be, deductible, in whole or in part, by the Debt Securities Issuer
for United States federal income tax purposes.
f. The Trust may not redeem fewer than all the outstanding Securities
unless all accrued and unpaid Distributions have been paid on all Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
g. In the event that the Sponsor makes the election referred to in
Section 8.1(a)(v) of the Declaration, the Regular Trustees shall dissolve the
Trust and, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, cause Subordinated Debt Securities, held by the Property Trustee,
having an aggregate stated liquidation amount of, with an interest rate
identical to the Coupon Rate of, and accrued and unpaid interest equal to
accrued and unpaid Distributions on and having the same record date for payment,
as the Securities, to be distributed to the Holders of the Securities in
liquidation of such Holders' interests in the Trust on a Pro Rata basis in
accordance with paragraph 8 hereof. On and from the date fixed by the Regular
Trustees for any distribution of Subordinated Debt Securities and dissolution of
the Trust: (i) the Securities will no longer be deemed to be outstanding, (ii)
The
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<PAGE>
Depository Trust Company (the "Depository") or its nominee (or any successor
Clearing Agency or its nominee), as the record Holder of the Preferred
Securities, will receive a registered global certificate or certificates
representing the Subordinated Debt Securities to be delivered upon such
distribution and (iii) any certificates representing Securities, except for
certificates representing Preferred Securities held by the Depository or
its nominee (or any successor Clearing Agency or its nominee), will be deemed to
represent beneficial interests in the Subordinated Debt Securities having an
aggregate principal amount equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Coupon Rate of, and accrued and unpaid
interest equal to accrued and unpaid Distributions on such Securities until such
certificates are presented to the Subordinated Debt Securities Issuer or its
agent for transfer or reissue. If the Subordinated Debt Securities are
distributed to Holders of the Securities, pursuant to the terms of the
Indenture, the Subordinated Debt Securities Issuer will use its best efforts to
have the Subordinated Debt Securities listed on the New York Stock Exchange or
on such other exchange as the Preferred Securities were listed immediately prior
to the distribution of the Subordinated Debt Securities.
h. Redemption or Distribution Procedures.
-------------------------------------
(i) Notice of any redemption of, or notice of distribution of
Subordinated Debt Securities in exchange for the Securities (a
"Redemption/Distribution Notice") will be given by the Trust by mail
to each Holder of Securities to be redeemed or exchanged not fewer
than 30 nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the date
fixed for redemption of the Subordinated Debt Securities. For
purposes of the calculation of the date of redemption or exchange and
the dates on which notices are given pursuant to this paragraph
4(h)(i), a Redemption/Distribution Notice shall be deemed to be given
on the day such notice is first mailed, by first-class mail, postage
prepaid, to Holders of Securities. Each Redemption/Distribution
Notice shall be addressed to the Holders of Securities at the address
of each such Holder appearing in the books and records of the Trust.
No defect in the Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect the validity of
the redemption or exchange proceedings with respect to any other
Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed will be redeemed Pro
Rata from each Holder of Securities, it being understood that, in
respect of Preferred Securities registered in the name of and held of
record by DTC (or any successor Clearing Agency) or any other nominee,
the distribution of the proceeds of such redemption will be made to
each Clearing Agency Participant (or person on whose behalf such
nominee holds such securities) in accordance with the procedures
applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice which notice may only be issued if the
Subordinated Debt Securities are redeemed as set out in this paragraph
4 (which notice will be irrevocable) then (A) while the Preferred
Securities are in book entry only form, with respect to the Preferred
Securities, by 12:00 noon, New York City time, on the redemption date,
provided that the Subordinated Debt Securities Issuer has paid the
Property Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Subordinated Debt Securities,
the Property Trustee will deposit irrevocably with the Depository (or
successor Clearing Agency) funds sufficient to pay the Redemption
Price with respect to the Preferred Securities and will give the
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Depository irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities, and (B)
if the Preferred Securities are issued in definitive form, with
respect to the Preferred Securities, and with respect to the Common
Securities, provided that the Subordinated Debt Securities Issuer has
paid the Property Trustee a sufficient amount of cash in connection
with the related redemption or maturity of the Subordinated Debt
Securities, the Property Trustee will pay the Redemption Price to the
Holders of such Securities by check mailed to the address of the
relevant Holder appearing on the books and records of the Trust on the
redemption date. If a Redemption/Distribution Notice shall have been
given and funds deposited as required, if applicable, then immediately
prior to the close of business on the date of such deposit, or on the
redemption date, as applicable, Distributions will cease to accrue on
the Securities so called for redemption and all rights of Holders of
such Securities so called for redemption will cease, except the right
of the Holders of such Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither the Regular
Trustees nor the Trust shall be required to register or cause to be
registered the transfer of any Securities which have been so called
for redemption. If any date fixed for redemption of Securities is not
a Business Day, then payment of the Redemption Price payable on such
date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in
respect of Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor pursuant
to the relevant Securities Guarantee, Distributions on such Securities
will continue to accrue, from the original redemption date to the
actual date of payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of calculating
the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the Preferred
Securities, the Depository or its nominee (or any successor Clearing
Agency or its nominee) if the Global Certificates have been issued or
if Definitive Preferred Security Certificates have been issued, to the
Holder thereof, and (B) in respect of the Common Securities, to the
Holder thereof.
5. Voting Rights Applicable to Preferred Securities.
------------------------------------------------
a. Except as provided under paragraphs 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred Securities
will have no voting rights.
b. Subject to the requirements of the third to last sentence of this
paragraph, the Holders of a Majority in liquidation amount of the Preferred
Securities, voting separately as a class, may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property
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<PAGE>
Trustee, or exercising any trust or power conferred upon the Property Trustee
under the Declaration, including (i) directing the time, method, and place of
conducting any proceeding for any remedy available to the Subordinated Debt
Securities Trustee, or exercising any trust or power conferred on the
Subordinated Debt Securities Trustee with respect to the Subordinated Debt
Securities, (ii) waiving any past default and its consequences that is waivable
under Section 5.13 of the Indenture, (iii) exercising any right to rescind or
annul a declaration that the principal of all the Subordinated Debt Securities
shall be due and payable or (iv) consenting to any amendment, modification or
termination of the Indenture or the Subordinated Debt Securities where such
consent shall be required, provided, however, that where a consent under the
Indenture would require the consent or act of the Holders of greater than a
majority in principal amount of Subordinated Debt Securities affected thereby (a
"Super Majority"), the Property Trustee may only give such consent or take such
action at the direction of the Holders of at least the proportion in liquidation
amount of the Preferred Securities which the relevant Super Majority represents
of the aggregate principal amount of the Subordinated Debt Securities
outstanding. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method and place of conducting
any remedy available to the Property Trustee or the Subordinated Debt Securities
Trustee as set forth above, the Property Trustee shall not take any action in
accordance with the directions of the Holders of the Preferred Securities under
this paragraph unless the Property Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action. If the Property Trustee fails to enforce its rights under the
Declaration, any Holder of Preferred Securities may, to the fullest extent
permitted by law, institute a legal proceeding directly against any Person to
enforce the Property Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing with respect to the Preferred Securities and such event is
attributable to the failure of the Subordinated Debt Securities Issuer to pay
interest, premium, if any, or principal on the Subordinated Debt Securities on
the date such interest, premium, if any, or principal is otherwise payable (or
in the case of redemption, on the redemption date), then a holder of Preferred
Securities may institute a Direct Action for enforcement of payment to such
holder of the principal of, premium, if any, or interest on, Subordinated Debt
Securities having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder on or after the respective due date
specified in the Subordinated Debt Securities. Notwithstanding any payments made
to such Holder of Preferred Securities by the Subordinated Debt Securities
Issuer in connection with a Direct Action, the Subordinated Debt Securities
Issuer shall remain obligated to pay the principal of, premium, if any, and
interest on the Subordinated Debt Securities held by the Trust or the Property
Trustee, and the Subordinated Debt Securities Issuer shall be subrogated to the
rights of the Holder of such Preferred Securities with respect to payments on
the Preferred Securities to the extent of any payment made by the Subordinated
Debt Securities Issuer to such Holder in any Direct Action. Except as provided
in the preceding sentences, the Holders of Preferred Securities will not be able
to exercise directly any other remedy available to the holders of the
Subordinated Debt Securities.
c. Any approval or direction of Holders of Preferred Securities may
be given at a separate meeting of Holders of Preferred Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.
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d. No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Subordinated Debt Securities in accordance with the Declaration
and the terms of the Securities.
e. Notwithstanding that Holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor or any Affiliate of the
Sponsor shall not be entitled to vote or consent and shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
6. Voting Rights With Respect to Common Securities.
-----------------------------------------------
a. Except as provided under paragraphs 6(b), 6(c) and 7 and as
otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
b. The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
c. Subject to Section 2.6 of the Declaration and only after all
Events of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under the Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the Subordinated Debt
Securities Trustee, or exercising any trust or power conferred on the
Subordinated Debt Securities Trustee with respect to the Subordinated Debt
Securities, (ii) waiving any past default and its consequences that is waivable
under Section 513 of the Indenture, or (iii) exercising any right to rescind or
annul a declaration that the principal of all the Subordinated Debt Securities
shall be due and payable, provided, however, that where a consent or action
under the Indenture would require the consent or act of the Holders of greater
than a majority in principal amount of Debentures affected thereby (a "Super
Majority"), the Property Trustee may only give such consent or take such action
at the direction of the Holders of at least the proportion in liquidation amount
of the Common Securities which the relevant Super Majority represents of the
aggregate principal amount of the Subordinated Debt Securities outstanding.
Pursuant to this paragraph 6(c), the Property Trustee shall not revoke any
action previously authorized or approved by a vote of the Holders of the Common
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Property Trustee or the Subordinated Debt
Securities Trustee as set forth above, the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Common Securities
under this paragraph unless the Property Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action. If the Property Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may, to the fullest extent
permitted by law, institute a legal proceeding directly against any Person to
enforce the Property Trustee's rights under the Declaration, without first
instituting a legal proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing with respect to the Common Securities and such event is attributable
to the failure of the Subordinated Debt Securities Issuer to pay interest or
principal on the Subordinated Debt Securities on the date such interest or
principal is otherwise payable (or in the case of redemption, on the redemption
date), then a holder of Common Securities may institute a proceeding for
A-8
<PAGE>
enforcement of payment to such holder of the principal of, or interest on,
Subordinated Debt Securities having a principal amount equal to the aggregate
liquidation amount of the Common Securities of such holder on or after the
respective due date specified in the Subordinated Debt Securities.
d. Any approval or direction of Holders of Common Securities may be
given at a separate meeting of Holders of Common Securities convened for such
purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written Consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, to be mailed
to each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies.
e. No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Subordinated Debt Securities in accordance with the Declaration and the
terms of the Securities.
7. Amendments to Declaration and Indenture.
---------------------------------------
a. In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than as described in
Section 8.1 or Section 3.14 of the Declaration, then the Holders of outstanding
Securities as a class, will be entitled to vote on such amendment or proposal
(but not on any other amendment or proposal) and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
Majority in liquidation amount of the Securities, voting together as a single
class; provided, however, that if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a Majority in liquidation amount of such class of
Securities.
b. In the event the consent of the Property Trustee as the holder of
the Subordinated Debt Securities is required under the Indenture with respect to
any amendment, modification or termination of the Indenture or the Subordinated
Debt Securities, the Property Trustee shall request the direction of the Holders
of the Securities with respect to such amendment, modification or termination
and shall vote with respect to such amendment, modification or termination as
directed by a Majority in liquidation amount of the Securities voting together
as a single class; provided, however, that where a consent under the Indenture
would require the consent of the Holders of greater than a majority in aggregate
principal amount of the Debentures (a "Super Majority"), the Property Trustee
may only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding; provided, further, that the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Securities under
this paragraph 7(b) unless the Property Trustee has been furnished an opinion of
tax counsel to the effect that for the purposes of United States federal income
tax the Trust will not be classified as other than a grantor trust on account of
such action.
A-9
<PAGE>
8. Pro Rata.
--------
A reference in these terms of the Securities to any payment, distribution
or treatment as being "Pro Rata" shall mean pro rata to each Holder of
Securities according to the aggregate liquidation amount of the Securities held
by the relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default
under the Indenture has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder of the
Preferred Securities pro rata according to the aggregate liquidation amount of
Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate liquidation
amount of Common Securities held by the relevant Holder relative to the
aggregate liquidation amount of all Common Securities outstanding.
9. Ranking.
-------
The Preferred Securities rank pari passu and payment thereon shall be made
Pro Rata with the Common Securities except that, where an Event of Default
occurs and is continuing under the Indenture in respect of the Subordinated Debt
Securities held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Preferred Securities.
10. Acceptance of Securities Guarantee and Indenture.
------------------------------------------------
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
11. No Preemptive Rights.
--------------------
The Holders of the Securities shall have no preemptive or similar rights to
subscribe for any additional Securities.
12. Miscellaneous.
-------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee and the Indenture to a Holder without charge on written
request to the Trust at its principal place of business.
A-10
<PAGE>
Annex I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depository") or a nominee of the Depository. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depository or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York) to the Trust or its
agent for registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.]
Certificate Number _______ Number of Preferred Securities _______
CUSIP NO.__________
A-11
<PAGE>
Certificate Evidencing Preferred Securities
of
SEMPRA ENERGY CAPITAL TRUST [ ]
[ ]% Preferred Securities
(liquidation amount $[ ] per Preferred Security)
SEMPRA ENERGY CAPITAL TRUST [ ], a business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that [ ] (the
"Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [ ]% Preferred Securities (liquidation amount $[ ] per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of [ ], [1999]/[200_], as the same may be amended from time to time (the
"Declaration") including the designation of the terms of the Preferred
Securities as set forth in Exhibit A to the Declaration. Capitalized terms used
herein but not defined shall have the respective meanings given them in the
Declaration. The Holder is entitled to the benefits of the Preferred Securities
Guarantee to the extent provided therein. The Sponsor will provide a copy of
the Declaration, the Preferred Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Trust at its principal place
of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Subordinated Debt Securities as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Subordinated Debt
Securities.
A-12
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this ______ day
of ____________, 1999.
<TABLE>
SEMPRA ENERGY CAPITAL TRUST [ ]
<S> <C>
By ______________________, as Regular Trustee
By ______________________, as Regular Trustee
</TABLE>
CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the
Amended and Restated Declaration of Trust
described herein.
Dated: __________________________________
THE BANK OF NEW YORK, as Property Trustee
By: __________________________________
Name:
Title:
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to: ____________________________________________________
(Insert assignee's social security or tax
_____________________________________________________________________________
identification number)
_____________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
<TABLE>
<CAPTION>
<S> <C>
Date: ___________________ Signature: _____________________________________________________
(Sign exactly as your name appears on the other side
of this Preferred Security Certificate)
Signature Guarantor: ___________________________________________
</TABLE>
A-13
<PAGE>
Annex II
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD UNLESS SUCH OFFER AND SALE ARE REGISTERED UNDER OR ARE EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT. THE TRANSFER OF THE SECURITY
EVIDENCED HEREBY IS ALSO SUBJECT TO THE RESTRICTIONS SET FORTH IN THE
DECLARATION REFERRED TO BELOW.
Certificate Number _______ Number of Common Securities _______
Certificate Evidencing Common Securities
of
SEMPRA ENERGY CAPITAL TRUST [ ]
Common Securities (liquidation amount $[ ] per Common Security)
SEMPRA ENERGY CAPITAL TRUST [ ], a business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that Sempra Energy (the
"Holder") is the registered owner of common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the [ ]%
Common Securities (liquidation amount $[ ] per Common Security) (the "Common
Securities"). Subject to the terms of the Declaration (as defined below), the
Common Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of [ ], [1999]/[200_], as the same may be amended from time to time
(the "Declaration") including the designation of the terms of the Common
Securities as set forth in Exhibit A to the Declaration. Capitalized terms used
herein but not defined shall have the respective meanings given them in the
Declaration. The Holder is entitled to the benefits of the Common Securities
Guarantee to the extent provided therein. The Sponsor will provide a copy of
the Declaration, the Common Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States federal income
tax purposes, the Subordinated Debt Securities as indebtedness and the Common
Securities as evidence of indirect beneficial ownership in the Subordinated Debt
Securities.
A-14
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this day of
[ ], [1999]/[200_].
<TABLE>
<CAPTION>
<S> <C>
SEMPRA ENERGY CAPITAL TRUST [ ]
By: _________________________, as Regular Trustee
By: _________________________, as Regular Trustee
</TABLE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common
Security Certificate to: _____________________________________________________
(Insert assignee's social security or tax
______________________________________________________________________________
identification number)
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________________________
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
<TABLE>
<CAPTION>
<S> <C>
Date: ___________________ Signature: ______________________________________________________
(Sign exactly as your name appears on the other side
of this Common Security Certificate)
Signature Guarantor: ____________________________________________
</TABLE>
A-15
<PAGE>
Exhibit 5.1
[Letterhead of John R. Light, Esq.]
May 5, 1999
Sempra Energy
101 Ash Street
San Diego, CA 92101
Re: Registration Statement on Form S-3 of Sempra Energy, Sempra Holdings,
Inc., Sempra Energy Capital Trust I, Sempra Energy Capital Trust II and
Sempra Energy Capital Trust III
--------------------------------------------------------------------
Ladies and Gentlemen:
I am the Executive Vice President and General Counsel of Sempra Energy, a
California corporation. In connection with the registration statement on Form
S-3 filed on May 5, 1999 (the "Registration Statement") by Sempra Energy, a
California Corporation, Sempra Holdings, a California corporation, Sempra
Energy Capital Trust I, a Delaware Trust, Sempra Energy Capital Trust II, a
Delaware Trust, and Sempra Energy Capital Trust III, a Delaware Trust
(collectively, the "Registrants") with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), you have requested my opinion with respect to the matters
set forth below.
I have reviewed the prospectus (the "Prospectus") which is a part of the
Registration Statement. The Prospectus provides that it will be supplemented in
the future by one or more supplements to the Prospectus (each a "Prospectus
Supplement"). The Prospectus as supplemented by various Prospectus Supplements
will provide for the registration of up to $1,000,000,000 aggregate offering
price of (i) one or more series of unsecured senior or subordinated debt
securities (the "Debt Securities") which may be issued by Sempra Energy or
Sempra Energy Holdings, (ii) shares of common stock, without par value, which
may be issued by Sempra Energy (the "Common Stock"), (iii) shares of preferred
stock, without par value, which may be issued by Sempra Energy (the "Preferred
Stock"), (iv) preferred securities (the "Preferred Securities") which may be
issued by each Trust pursuant to their respective Amended and Restated
Declarations of Trust (each an "Amended Declaration") and (v) guarantees of the
Preferred Securities, which may be issued by Sempra Energy (the "Preferred
Securities Guarantees"), and the Debt Securities issued by Sempra Energy
Holdings (the "Debt Securities Guarantees" and, together with the Preferred
Securities Guarantees, the "Guarantees") described below pursuant to one or
more guarantee agreements (each a "Guarantee Agreement"). The Debt Securities,
the Guarantees and the Common and Preferred Stock are collectively referred to
herein as the "Securities." Any Debt Securities may be exchangeable and/or
convertible into shares of Common Stock. The Debt Securities may be issued
pursuant to one or more indentures and one or more supplements thereto
(collectively, the "Indentures"), in each case between Sempra Energy or Sempra
Holdings and a trustee (each, a "Trustee").
<PAGE>
In my capacity as General Counsel, I am generally familiar with the
proceedings taken and proposed to be taken by the Registrants in connection
with the authorization and issuance of the Securities. For purposes of this
opinion, I have assumed that such proceedings will be timely and properly
completed, in accordance with all requirements of applicable federal, Delaware,
California and New York laws, in the manner presently proposed.
I have made such legal and factual examinations and inquiries, including an
examination of originals and copies certified or otherwise identified to my
satisfaction, of all such documents, corporation records and instruments of the
Registrants as I have deemed necessary or appropriate for purposes of this
opinion. In my examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as originals, and the
conformity to authentic original documents of all documents submitted to me as
copies.
I have been furnished with, and with your consent have exclusively relied
upon, certificates of officers of Sempra Energy with respect to certain factual
matters. In addition, I have obtained and relied upon such certificates and
assurances from public officials as I have deemed necessary.
I am opining herein as to the effect on the subject transaction only of the
federal securities laws of the United States, the General Corporation Law of
the State of Delaware and the State of California and with respect to opinion
paragraphs 1, 2 and 3 below, the internal laws of the State of New York, and I
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or, in the case of Delaware and
California, any other laws, or as to any matters of municipal law or the laws
of any local agencies within any state.
Subject to the foregoing and the other qualifications set forth herein, it is
my opinion that, as of the date hereof:
1. When (a) the Debt Securities have been duly established in accordance with
the terms of the applicable Indentures (including, without limitation, the
adoption by the Board of Directors of Sempra Energy and/or Sempra Energy
Holdings of any necessary further resolutions duly authorizing the issuance and
delivery of the Debt Securities), duly authenticated by the Trustee and duly
executed and delivered on behalf of Sempra Energy and/or Sempra Energy Holdings
against payment therefor in accordance with the terms and provisions of the
applicable Indenture and as contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (b) when each of the
Registration Statement and any required post-effective amendment thereto have
all become effective under the Securities Act and (c) assuming that the terms
of the Debt Securities as executed and delivered are as described in the
Registration Statement, the Prospectus and the related prospectus
Supplement(s), and (d) assuming that the Debt Securities as executed and
delivered do not violate any law applicable to the issuing company or result in
a default under or breach of any agreement or instrument binding upon the
issuing company, and (e) assuming that the Debt Securities as executed and
delivered comply with all requirements and restrictions, if any, applicable to
the issuing company, whether imposed by any court or governmental or regulatory
body having jurisdiction over the issuing company, and (f) assuming that the
Debt Securities are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Debt
Securities will constitute valid and legally binding obligations of the issuing
company enforceable against the issuing company in accordance with the terms of
the Debt Securities.
<PAGE>
2. When (a) the Debt Securities Guarantees and the related Debt Securities
have been duly established in accordance with the terms of the applicable
Indentures (including, without limitation, the adoption by the Board of
Directors of Sempra Energy of any necessary further resolutions duly
authorizing the issuance and delivery of the Debt Securities Guarantees and the
related Debt Securities), the Debt Securities Guarantees have been duly
executed and delivered and the related Debt Securities have been authenticated
by the Trustee and duly executed and delivered on behalf of Sempra Energy
against payment therefor in accordance with the terms and provisions of the
applicable Indenture and as contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (b) when each of the
Registration Statement and any required post-effective amendment thereto have
all become effective under the Securities Act, and (c) assuming that the terms
of the Debt Securities Guarantees as executed and delivered are as described in
the Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and (d) assuming that the Debt Securities Guarantees as executed
and delivered do not violate any law applicable to Sempra Energy or result in a
default under or breach of any agreement or instrument binding upon Sempra
Energy, and (e) assuming that the Debt Securities Guarantees as executed and
delivered comply with all requirements and restrictions, if any, applicable to
Sempra Energy, whether imposed by any court or governmental or regulatory body
having jurisdiction over Sempra Energy, and (f) assuming that the Debt
Securities Guarantees are then issued as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Debt
Securities Guarantees will constitute valid and legally binding obligations of
Sempra Energy, enforceable against Sempra Energy in accordance with the terms
of the Debt Securities Guarantees.
3. With respect to the Preferred Securities Guarantees, when (i) the trustees
of the applicable Trust have taken all necessary action to adopt the Amended
Declaration and to fix and determine the terms of the applicable Preferred
Securities in accordance with the terms of the applicable Amendment
Declaration; (ii) the appropriate officers of Sempra Energy have taken all
necessary action to fix and determine the terms of the applicable Preferred
Securities Guarantees in accordance with the resolutions adopted by the Board
of Directors of Sempra Energy relating to the issuance and delivery of the
Preferred Securities; (iii) the terms of the applicable Preferred Securities
and the related Preferred Securities Guarantee and the issuance and sale
thereof have been duly established in conformity with the applicable amended
Declaration and applicable Guarantee Agreement, respectively, so as not to
violate any applicable law, the applicable Certificate of Trust, Declaration of
Trust and Amended Declaration, and the Articles of Incorporation and By-laws of
Sempra Energy, or result in a default under or breach of any agreement or
instrument binding upon the applicable Trust or Sempra Energy; (iv) the
applicable Guarantee Agreement has been duly executed and delivered; (v) the
applicable Preferred Securities have been duly issued and delivered by the
applicable Trust as contemplated by the Registration Statement and the
prospectus supplement relating thereto; (vi) certificates representing the
applicable Preferred Securities have been manually authenticated by an
authorized officer of the applicable Property Trustee (as defined in the
applicable Amended Declaration) for the applicable Preferred Securities and
registered by such Property Trustee and delivered to the purchasers thereof;
(vii) the applicable Trust receives the agreed-upon consideration therefor and
(viii) the applicable Guarantee Agreement shall have been qualified under the
Trust Indenture Act of 1939, as amended, the applicable Preferred Securities
Guarantee will be a valid and binding obligation of Sempra Energy enforceable
in accordance with its terms.
4. Sempra Energy has the authority pursuant to its Articles of Incorporation
to issue up to 750,000,000 shares of Common Stock and 50,000,000 shares of
Preferred Stock. Upon adoption by the Board of Directors of Sempra Energy of
any necessary further resolutions in form and content as required by applicable
law and upon issuance and delivery of and payment for such shares in the
<PAGE>
manner contemplated by the Registration Statement, the Prospectus and the
related Prospectus Supplement(s) and by such resolution, such shares of common
Stock (including any Common Stock duly issued upon the exchange or conversion
of Debt Securities that are exchangeable or convertible into Common Stock) or
Preferred Stock will be validly issued, fully paid and nonassessable.
The opinions set forth in paragraphs 1 through 4 above are subject to the
following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance or injunctive
relief, regardless of whether enforcement is considered in a proceeding in
equity or at law, and the discretion of the court before which any proceeding
therefor may be brought; (iii) the unenforceability under certain circumstances
under law or court decisions of provisions providing for the indemnification
of, or contribution to, a party with respect to a liability where such
indemnification or contribution is contrary to public policy; (iv) requirements
that a claim with respect to any Guarantee denominated other than in United
States dollars (or a judgment denominated other than in United States dollars
in respect of such claim) be converted into United States dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law;
(v) governmental authority to limit, delay or prohibit the making of payments
outside the United States or in a foreign currency, composite currency or
current unit; (vi) I express no opinion concerning the enforceability of any
waiver of rights or defenses with respect to stay, extension or usury laws; and
(vii) I express no opinion with respect to whether acceleration of Debt
Securities may affect the collectibility of any portion of the stated principle
amount thereof which might be determined to constitute unearned interest
thereon.
I have assumed for purposes of this opinion that the applicable Indenture
constitutes the legally valid, binding and enforceable obligation of each of
Sempra Energy and Sempra Energy Holdings enforceable against each of Sempra
Energy and Sempra Energy Holdings in accordance with its terms; and that
Trustee for each Indenture is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Trustee
is duly qualified to engage in the activities contemplated by the applicable
Indenture; that the applicable Indenture has been duly authorized, executed and
delivered by the Trustee and constitutes a legally valid, binding and
enforceable obligation of the Trustee, enforceable against the Trustee in
accordance with its terms; and the Trustee is in compliance, generally and with
respect to acting as Trustee under the applicable Indenture, with all
applicable laws and regulations; and that the Trustee has the requisite
organizational and legal power and authority to perform its obligations under
the applicable Indenture.
I consent to your filling this opinion as an exhibit to the Registration
Statement and to the reference to me under the caption "Validity of the
Securities and the Guarantees" in the Prospectus included therein.
Very truly yours,
/s/ John R. Light
-------------------------------------
John R. Light, Esq.
Executive Vice President and General
Counsel
<PAGE>
Exhibit 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
May 5, 1999
Sempra Energy Capital Trust I
c/o Sempra Energy
101 Ash Street
San Diego, California 92101
Re: Sempra Energy Capital Trust I
-----------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Sempra Energy, a
California corporation (the "Company"), and Sempra Energy Capital Trust I, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of April 22, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on April 22, 1999;
(b) The Declaration of Trust of the Trust, dated as of April 22, 1999,
among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibit A and Annexes I and II)(the "Declaration"), to be entered
into among the Company, as sponsor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
Preferred Securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security"
<PAGE>
Sempra Energy Capital Trust 1
May 5, 1999
Page 2
and collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and others with the Securities and Exchange Commission on or
about May 5, 1999; and
(e) A Certificate of Good Standing for the Trust, dated May 5, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
and the Certificate are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a preferred security certificate for such Preferred
Security and the payment for the Preferred Security acquired by it, in
accordance with the Declaration and the Registration Statement, and (vii) that
the Preferred Securities are issued and sold to the Preferred Security Holders
in accordance with the Declaration and the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on
<PAGE>
Sempra Energy Capital Trust 1
May 5, 1999
Page 3
the laws of any other jurisdiction, including federal laws and rules and
regulations relating thereto. Our opinions are rendered only with respect to
Delaware laws and rules, regulations and orders thereunder that are currently in
effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of the
Securities and the Guarantees" in the Prospectus. In giving the foregoing
consents, we do not thereby admit that we come within the category of Persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/MKS
<PAGE>
Exhibit 5.3
[Letterhead of Richards, Layton & Finger, P.A.]
May 5, 1999
Sempra Energy Capital Trust II
c/o Sempra Energy
101 Ash Street
San Diego, California 92101
Re: Sempra Energy Capital Trust II
------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Sempra Energy, a
California corporation (the "Company"), and Sempra Energy Capital Trust II, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of April 22, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on April 22, 1999;
(b) The Declaration of Trust of the Trust, dated as of April 22, 1999,
among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibit A and Annexes I and II)(the "Declaration"), to be entered
into among the Company, as sponsor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
Preferred Securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security"
<PAGE>
Sempra Energy Capital Trust II
May 5, 1999
Page 2
and collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and others with the Securities and Exchange Commission on or
about May 5, 1999; and
(e) A Certificate of Good Standing for the Trust, dated May 5,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
and the Certificate are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a preferred security certificate for such Preferred
Security and the payment for the Preferred Security acquired by it, in
accordance with the Declaration and the Registration Statement, and (vii) that
the Preferred Securities are issued and sold to the Preferred Security Holders
in accordance with the Declaration and the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
<PAGE>
Sempra Energy Capital Trust II
May 5, 1999
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of the
Securities and the Guarantees" in the Prospectus. In giving the foregoing
consents, we do not thereby admit that we come within the category of Persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/MKS
<PAGE>
Exhibit 5.4
[Letterhead of Richards, Layton & Finger, P.A.]
May 5, 1999
Sempra Energy Capital Trust III
c/o Sempra Energy
101 Ash Street
San Diego, California 92101
Re: Sempra Energy Capital Trust III
-------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Sempra Energy, a
California corporation (the "Company"), and Sempra Energy Capital Trust III, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of April 22, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on April 22, 1999;
(b) The Declaration of Trust of the Trust, dated as of April 22, 1999,
among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Declaration of Trust of the Trust
(including Exhibit A and Annexes I and II)(the "Declaration"), to be entered
into among the Company, as sponsor, the trustees of the Trust named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
Preferred Securities of the Trust
<PAGE>
Sempra Energy Capital Trust III
May 5, 1999
Page 2
representing undivided beneficial interests in the assets of the Trust (each, a
"Preferred Security" and collectively, the "Preferred Securities"), as proposed
to be filed by the Company, the Trust and others with the Securities and
Exchange Commission on or about May 5, 1999; and
(e) A Certificate of Good Standing for the Trust, dated May 5, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
are in full force and effect and have not been amended, (ii) except to the
extent provided in paragraph 1 below, the due creation or due organization or
due formation, as the case may be, and valid existence in good standing of each
party to the documents examined by us under the laws of the jurisdiction
governing its creation, organization or formation, (iii) the legal capacity of
natural persons who are parties to the documents examined by us, (iv) that each
of the parties to the documents examined by us has the power and authority to
execute and deliver, and to perform its obligations under, such documents, (v)
the due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vi) the receipt by each Person to whom a Preferred
Security is to be issued by the Trust (collectively, the "Preferred Security
Holders") of a preferred security certificate for such Preferred Security and
the payment for the Preferred Security acquired by it, in accordance with the
Declaration and the Registration Statement, and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in accordance
with the Declaration and the Registration Statement. We have not participated
in the preparation of the Registration Statement and assume no responsibility
for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on
<PAGE>
Sempra Energy Capital Trust III
May 5, 1999
Page 3
the laws of any other jurisdiction, including federal laws and rules and
regulations relating thereto. Our opinions are rendered only with respect to
Delaware laws and rules, regulations and orders thereunder that are currently in
effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Securities
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of the
Securities and the Guarantees" in the Prospectus. In giving the foregoing
consents, we do not thereby admit that we come within the category of Persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder. Except as stated above, without our prior written consent, this
opinion may not be furnished or quoted to, or relied upon by, any other Person
for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
BJK/MKS
<PAGE>
EXHIBIT 12.1
SEMPRA ENERGY
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(Dollars in millions)
1994 1995 1996 1997 1998
-------- -------- -------- -------- --------
Fixed Charges and Preferred
Stock Dividends:
Interest $ 237 $ 227 $ 205 $ 209 $ 210
Interest Portion of
Annual Rentals 35 32 28 25 20
Preferred dividends
of subsidiaries (1) 53 50 37 31 18
-------- -------- -------- -------- --------
Total Fixed Charges
and Preferred Stock
Dividends For Purpose
of Ratio $ 325 $ 309 $ 270 $ 265 $ 248
======== ======== ======== ======== ========
Earnings:
Pretax income from
continuing operations $ 634 $ 665 $ 727 $ 733 $ 432
Add:
Fixed charges
(from above) 325 309 270 265 248
Less: Fixed charges
capitalized 4 6 5 3 3
-------- -------- -------- -------- --------
Fixed charges net of
capitalized charges 321 303 265 262 245
-------- -------- -------- -------- --------
Total Earnings for
Purpose of Ratio $ 955 $ 968 $ 992 $ 995 $ 677
======== ======== ======== ======== ========
Ratio of Earnings
to Combined Fixed Charges
and Preferred Stock
Dividends 2.94 3.13 3.67 3.75 2.73
======== ======== ======== ======== ========
(1) In computing this ratio, "Preferred dividends of subsidiaries" represents
the before-tax earnings necessary to pay such dividends, computed at the
effective tax rates for the applicable periods.
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this registration statement of
Sempra Energy, Sempra Energy Holdings, Sempra Energy Capital Trust I, Sempra
Energy Capital Trust II and Sempra Energy Capital Trust III on Form S-3 of our
reports dated March 9, 1999 on Schedule I -- Condensed Financial Information of
Parent and January 27, 1999, except for Note 16 as to which the date is February
22, 1999 on the Consolidated Financial Statements, appearing in and incorporated
by reference in the Annual Report on Form 10-K of Sempra Energy for the year
ended December 31, 1998 and our report dated January 27, 1999, except for Note
16 as to which the date is February 22, 1999 on the Supplemental Schedule of
Summarized Financial Information appearing in the Current Report on Form 8-K
dated May 5, 1999, and to the reference to us under the heading "Experts" in the
prospectus, which is part of this registration statement.
Deloitte & Touche LLP
San Diego, California
May 5, 1999
<PAGE>
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
________________________
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
_______________________
Sempra Energy
(Exact name of obligor as specified in its charter)
California 33-0732627
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
101 Ash Street
San Diego, California 92101
(Address of principal executive offices) (Zip Code)
_________________________
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement No. 2-
29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-
55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1
to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
<PAGE>
Exhibit 6 - The consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration
Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A.
(as of December 31, 1998 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
__________________
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 23rd day
of April, 1999.
CITIBANK, N.A.
By /s/ Cindy Tsang
---------------
Assistant Vice President
<PAGE>
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York, at the close of business
on December 31, 1998, published in response to call made by
Comptroller of the Currency, under Title 12, United States
Code, Section 161. Charter Number 1461 Comptroller of the
Currency Northeastern District.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C>
Cash and balances due from de-
pository institutions:
Noninterest-bearing balances
and currency and coin............... $ 8,052,000
Interest-bearing balances........... 15,782,000
Held-to-maturity securities.......... 0
Available-for-sale securities........ 37,330,000
Federal funds sold and
securities purchased under
agreements to resell................ 8,039,000
Loans and lease financing
receivables:
Loans and Leases, net of un-
earned income....................... $182,508,000
LESS: Allowance for loan
and lease losses................... 4,709,000
------------
Loans and leases, net of un-
earned income, allowance,
and reserve......................... $177,799,000
Trading assets....................... 31,683,000
Premises and fixed assets (includ-
ing capitalized leases)............. 4,022,000
Other real estate owned.............. 458,000
Investments in unconsolidated
subsidiaries and associated com-
panies.............................. 1,154,000
Customers liability to this bank
on acceptances outstanding.......... 1,281,000
Intangible assets.................... 3,504,000
Other assets......................... 11,791,000
------------
TOTAL ASSETS......................... $300,895,000
============
LIABILITIES
Deposits:
In domestic offices................. $ 39,355,000
Noninterest-
bearing............................ $ 13,199,000
Interest-
bearing............................ 26,156,000
------------
In foreign offices, Edge and
Agreement subsidiaries, and
IBFs................................. 163,573,000
Noninterest-
bearing............................ 10,803,000
Interest-
bearing............................ 152,770,000
------------
Federal funds purchased and
securities sold under agree-
ments to repurchase................. 9,752,000
Trading liabilities.................. 30,753,000
Other borrowed money (includes
mortgage indebtedness and
obligations under capitalized
leases):
With a remaining maturity of one
year or less........................ 13,308,000
With a remaining maturity of more
than one year through three years... 1,528,000
With a remaining maturity of more
than three years.................... 2,110,000
Bank's liability on acceptances ex-
ecuted and outstanding.............. 1,382,000
Subordinated notes and
debentures.......................... 6,600,000
Other liabilities.................... 12,802,000
------------
TOTAL LIABILITIES.................... $281,163,000
============
EQUITY CAPITAL
Perpetual preferred stock
and related surplus................. 0
Common stock......................... $ 751,000
Surplus.............................. 9,397,000
Undivided profits and capital re-
serves.............................. 10,356,000
Net unrealized holding gains (losses)
on available-for-sale securities.... (113,000)
Cumulative foreign currency
translation adjustments............. (659,000)
----------
TOTAL EQUITY CAPITAL................. $ 19,732,000
==========
TOTAL LIABILITIES, LIMITED-
LIFE PREFERRED STOCK, AND
EQUITY CAPITAL....................... $300,895,000
============
I, Roger W. Trupin, Controller of the above-named bank do
hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to the correctness of
this Report of Condition. We declare that it has been examined
by us, and to the best of our knowledge and belief has been
prepared in conformance with the instructions and is true and
correct.
PAUL J. COLLINS
JOHN S. REED
WILLIAM R. RHODES
DIRECTORS
</TABLE>
<PAGE>
Exhibit 25.2
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
___________________________
Sempra Energy
(Exact name of obligor as specified in its charter)
California 33-0732627
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
101 Ash Street 92101
San Diego, California (Zip code)
(Address of principal executive offices)
___________________________
Subordinated Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y.
New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
-2-
<PAGE>
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 26th day of April, 1999.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
--------------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin.................................................... $3,951,273
Interest-bearing balances.................................... 4,134,162
Securities:
Held-to-maturity securities.................................. 932,468
Available-for-sale securities................................ 4,279,246
Federal funds sold and Securities purchased under
agreements to resell......................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,861,802
LESS: Allowance for loan and
lease losses...............................619,791
LESS: Allocated transfer risk
reserve......................................3,572
Loans and leases, net of unearned income, allowance,
and reserve................................................. 37,238,439
Trading Assets................................................ 1,551,556
Premises and fixed assets (including capitalized leases)...... 684,181
Other real estate owned....................................... 10,404
Investments in unconsolidated subsidiaries and associated
companies.................................................... 196,032
Customers' liability to this bank on acceptances
outstanding.................................................. 895,160
Intangible assets............................................. 1,127,375
Other assets.................................................. 1,915,742
-----------
Total assets.................................................. $60,077,664
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................... 17,197,743
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase..................................... 1,761,170
Demand notes issued to the U.S. Treasury...................... 125,423
Trading liabilities........................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less.................. 1,903,700
With remaining maturity of more than one year
through three years......................................... 0
With remaining maturity of more than three years............. 31,639
Bank's liability on acceptances executed and outstanding...... 900,390
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,708,852
-----------
Total liabilities............................................. 54,583,127
-----------
EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 764,443
Undivided profits and capital reserves........................ 3,542,168
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 82,367
Cumulative foreign currency translation adjustments........... ( 29,725)
----------
Total equity capital.......................................... 5,494,537
----------
Total liabilities and equity capital.......................... $60,077,664
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Gerald L. Hassell } Directors
Alan R. Griffith
</TABLE>
- -------------------------------------------------------------------------------
<PAGE>
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
--------------------
FORM T - 1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
--------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
For information, contact:
Dennis Calabrese, President
U.S. Bank Trust National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
SEMPRA ENERGY HOLDINGS
(Exact name of obligor as specified in its charter)
California 33-0783483
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
101 Ash Street 92101
San Diego, California
(Address of principal executive offices) (Zip Code)
--------------------
DEBT SECURITIES
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits.
Exhibit 1. Articles of Association of U.S. Bank Trust National
Association, incorporated herein by reference to Exhibit 1 of
Form T-1, Registration No. 333-51961.
Exhibit 2. Certificate of Authority to Commence Business for First Trust
of New York, National Association now known as U.S. Bank
Trust National Association, incorporated herein by reference
to Exhibit 2 of Form T-1, Registration No. 33-83774.
Exhibit 3. Authorization to exercise corporate trust powers for U.S.
Bank Trust National Association, incorporated herein by
reference to Exhibit 3 of Form T-1, Registration No. 333-
51961.
Exhibit 4. By-Laws of U.S. Bank Trust National Association, incorporated
herein by reference to Exhibit 4 of Form T-1, Registration
No. 333-51961.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National Association now
known as U.S. Bank Trust National Association, required by
Section 321(b) of the Act, incorporated herein by reference
to Exhibit 6 of Form T-1, Registration No. 33-83774.
<PAGE>
Exhibit 7. Report of Condition of U.S. Bank Trust National Association,
as of the close of business on December 31, 1998, published
pursuant to law or the requirements of its supervising or
examining authority.
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, U.S. Bank Trust National Association, a national banking
association organized and existing under the laws of the United States, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 23nd day of April, 1999.
U.S. BANK TRUST
NATIONAL ASSOCIATION
By: /s/ K. Wendy Kumar
------------------
K. Wendy Kumar
Vice President
<PAGE>
Exhibit 7
---------
U.S. Bank Trust National Association
Statement of Financial Condition
As of 12/31/98
($000's)
<TABLE>
<CAPTION>
12/31/98
------------
<S> <C>
Assets
Cash and Due From Depository Institutions $ 42,823
Federal Reserve Stock 3,384
Fixed Assets 486
Intangible Assets 68,104
Other Assets 7,261
------------
Total Assets $122,058
Liabilities
Other Liabilities $ 9,462
------------
Total Liabilities $ 9,462
Equity
Common and Preferred Stock $ 1,000
Surplus 120,932
Undivided Profits (9,336)
------------
Total Equity Capital $112,596
Total Liabilities and Equity Capital $122,058
</TABLE>
- ---------------------------------------------------------------------
To the best of the undersigned's determination, as of this date the above
financial information is true and correct.
U.S. Bank Trust National Association
By: /s/ K. Wendy Kumar
------------------------
Vice President
Date: April 23, 1999
<PAGE>
Exhibit 25.4
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
</TABLE>
___________________________
Sempra Energy Capital Trust I
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Delaware 52-6988596
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
101 Ash Street 92101
San Diego, California (Zip code)
(Address of principal executive offices)
</TABLE>
___________________________
Preferred Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y.
New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
-2-
<PAGE>
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 26th day of April, 1999.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
--------------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin.................................................... $3,951,273
Interest-bearing balances.................................... 4,134,162
Securities:
Held-to-maturity securities.................................. 932,468
Available-for-sale securities................................ 4,279,246
Federal funds sold and Securities purchased under
agreements to resell......................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,861,802
LESS: Allowance for loan and
lease losses...............................619,791
LESS: Allocated transfer risk
reserve......................................3,572
Loans and leases, net of unearned income, allowance,
and reserve................................................. 37,238,439
Trading Assets................................................ 1,551,556
Premises and fixed assets (including capitalized leases)...... 684,181
Other real estate owned....................................... 10,404
Investments in unconsolidated subsidiaries and associated
companies.................................................... 196,032
Customers' liability to this bank on acceptances
outstanding.................................................. 895,160
Intangible assets............................................. 1,127,375
Other assets.................................................. 1,915,742
-----------
Total assets.................................................. $60,077,664
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................... 17,197,743
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase..................................... 1,761,170
Demand notes issued to the U.S. Treasury...................... 125,423
Trading liabilities........................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less.................. 1,903,700
With remaining maturity of more than one year
through three years......................................... 0
With remaining maturity of more than three years............. 31,639
Bank's liability on acceptances executed and outstanding...... 900,390
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,708,852
-----------
Total liabilities............................................. 54,583,127
-----------
EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 764,443
Undivided profits and capital reserves........................ 3,542,168
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 82,367
Cumulative foreign currency translation adjustments........... ( 29,725)
-----------
Total equity capital.......................................... 5,494,537
-----------
Total liabilities and equity capital.......................... $60,077,664
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Gerald L. Hassell } Directors
Alan R. Griffith
</TABLE>
- -------------------------------------------------------------------------------
<PAGE>
EXHIBIT 25.5
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
___________________________
Sempra Energy Capital Trust II
(Exact name of obligor as specified in its charter)
Delaware 52-6988598
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
101 Ash Street 92101
San Diego, California (Zip code)
(Address of principal executive offices)
__________________________
Preferred Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Name Address
- ----------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
-2-
<PAGE>
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 26th day of April, 1999.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
--------------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin.................................................... $3,951,273
Interest-bearing balances.................................... 4,134,162
Securities:
Held-to-maturity securities.................................. 932,468
Available-for-sale securities................................ 4,279,246
Federal funds sold and Securities purchased under
agreements to resell......................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,861,802
LESS: Allowance for loan and
lease losses...............................619,791
LESS: Allocated transfer risk
reserve......................................3,572
Loans and leases, net of unearned income, allowance,
and reserve................................................. 37,238,439
Trading Assets................................................ 1,551,556
Premises and fixed assets (including capitalized leases)...... 684,181
Other real estate owned....................................... 10,404
Investments in unconsolidated subsidiaries and associated
companies.................................................... 196,032
Customers' liability to this bank on acceptances
outstanding.................................................. 895,160
Intangible assets............................................. 1,127,375
Other assets.................................................. 1,915,742
-----------
Total assets.................................................. $60,077,664
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................... 17,197,743
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase..................................... 1,761,170
Demand notes issued to the U.S. Treasury...................... 125,423
Trading liabilities........................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less.................. 1,903,700
With remaining maturity of more than one year
through three years......................................... 0
With remaining maturity of more than three years............. 31,639
Bank's liability on acceptances executed and outstanding...... 900,390
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,708,852
-----------
Total liabilities............................................. 54,583,127
-----------
EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 764,443
Undivided profits and capital reserves........................ 3,542,168
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 82,367
Cumulative foreign currency translation adjustments........... ( 29,725)
-----------
Total equity capital.......................................... 5,494,537
-----------
Total liabilities and equity capital.......................... $60,077,664
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Gerald L. Hassell } Directors
Alan R. Griffith
</TABLE>
- -------------------------------------------------------------------------------
<PAGE>
Exhibit 25.6
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [_]
___________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
___________________________
Sempra Energy Capital Trust III
(Exact name of obligor as specified in its charter)
Delaware 52-6988599
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
101 Ash Street 92101
San Diego, California (Zip code)
(Address of principal executive offices)
___________________________
Preferred Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
Name Address
- ---------------------------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
-2-
<PAGE>
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 26th day of April, 1999.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
--------------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin.................................................... $3,951,273
Interest-bearing balances.................................... 4,134,162
Securities:
Held-to-maturity securities.................................. 932,468
Available-for-sale securities................................ 4,279,246
Federal funds sold and Securities purchased under
agreements to resell......................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,861,802
LESS: Allowance for loan and
lease losses...............................619,791
LESS: Allocated transfer risk
reserve......................................3,572
Loans and leases, net of unearned income, allowance,
and reserve................................................. 37,238,439
Trading Assets................................................ 1,551,556
Premises and fixed assets (including capitalized leases)...... 684,181
Other real estate owned....................................... 10,404
Investments in unconsolidated subsidiaries and associated
companies.................................................... 196,032
Customers' liability to this bank on acceptances
outstanding.................................................. 895,160
Intangible assets............................................. 1,127,375
Other assets.................................................. 1,915,742
-----------
Total assets.................................................. $60,077,664
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................... 17,197,743
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase..................................... 1,761,170
Demand notes issued to the U.S. Treasury...................... 125,423
Trading liabilities........................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less.................. 1,903,700
With remaining maturity of more than one year
through three years......................................... 0
With remaining maturity of more than three years............. 31,639
Bank's liability on acceptances executed and outstanding...... 900,390
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,708,852
-----------
Total liabilities............................................. 54,583,127
-----------
EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 764,443
Undivided profits and capital reserves........................ 3,542,168
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 82,367
Cumulative foreign currency translation adjustments........... ( 29,725)
----------
Total equity capital.......................................... 5,494,537
----------
Total liabilities and equity capital.......................... $60,077,664
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Gerald L. Hassell } Directors
Alan R. Griffith
</TABLE>
- -------------------------------------------------------------------------------
<PAGE>
Exhibit 25.7
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
___________________________
Sempra Energy
(Exact name of obligor as specified in its charter)
California 33-0732627
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
101 Ash Street 92101
San Diego, California (Zip code)
(Address of principal executive offices)
___________________________
Guarantee of Preferred Securities of
Sempra Energy Capital Trust I
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Name Address
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006,
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
-2-
<PAGE>
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 26th day of April, 1999.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
--------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin.................................................... $3,951,273
Interest-bearing balances.................................... 4,134,162
Securities:
Held-to-maturity securities.................................. 932,468
Available-for-sale securities................................ 4,279,246
Federal funds sold and Securities purchased under
agreements to resell......................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,861,802
LESS: Allowance for loan and
lease losses...............................619,791
LESS: Allocated transfer risk
reserve......................................3,572
Loans and leases, net of unearned income, allowance,
and reserve................................................. 37,238,439
Trading Assets................................................ 1,551,556
Premises and fixed assets (including capitalized leases)...... 684,181
Other real estate owned....................................... 10,404
Investments in unconsolidated subsidiaries and associated
companies.................................................... 196,032
Customers' liability to this bank on acceptances
outstanding.................................................. 895,160
Intangible assets............................................. 1,127,375
Other assets.................................................. 1,915,742
-----------
Total assets.................................................. $60,077,664
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................... 17,197,743
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase..................................... 1,761,170
Demand notes issued to the U.S. Treasury...................... 125,423
Trading liabilities........................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less.................. 1,903,700
With remaining maturity of more than one year
through three years......................................... 0
With remaining maturity of more than three years............. 31,639
Bank's liability on acceptances executed and outstanding...... 900,390
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,708,852
-----------
Total liabilities............................................. 54,583,127
-----------
EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 764,443
Undivided profits and capital reserves........................ 3,542,168
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 82,367
Cumulative foreign currency translation adjustments........... ( 29,725)
------------
Total equity capital.......................................... 5,494,537
------------
Total liabilities and equity capital.......................... $60,077,664
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Gerald L. Hassell } Directors
Alan R. Griffith
</TABLE>
- -------------------------------------------------------------------------------
<PAGE>
Exhibit 25.8
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
___________________________
Sempra Energy
(Exact name of obligor as specified in its charter)
California 33-0732627
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
101 Ash Street 92101
San Diego, California (Zip code)
(Address of principal executive offices)
___________________________
Guarantee of Preferred Securities of
Sempra Energy Capital Trust II
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York, N.Y.
New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
-2-
<PAGE>
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 26th day of April, 1999.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
--------------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin.................................................... $3,951,273
Interest-bearing balances.................................... 4,134,162
Securities:
Held-to-maturity securities.................................. 932,468
Available-for-sale securities................................ 4,279,246
Federal funds sold and Securities purchased under
agreements to resell......................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,861,802
LESS: Allowance for loan and
lease losses...............................619,791
LESS: Allocated transfer risk
reserve......................................3,572
Loans and leases, net of unearned income, allowance,
and reserve................................................. 37,238,439
Trading Assets................................................ 1,551,556
Premises and fixed assets (including capitalized leases)...... 684,181
Other real estate owned....................................... 10,404
Investments in unconsolidated subsidiaries and associated
companies.................................................... 196,032
Customers' liability to this bank on acceptances
outstanding.................................................. 895,160
Intangible assets............................................. 1,127,375
Other assets.................................................. 1,915,742
-----------
Total assets.................................................. $60,077,664
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................... 17,197,743
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase..................................... 1,761,170
Demand notes issued to the U.S. Treasury...................... 125,423
Trading liabilities........................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less.................. 1,903,700
With remaining maturity of more than one year
through three years......................................... 0
With remaining maturity of more than three years............. 31,639
Bank's liability on acceptances executed and outstanding...... 900,390
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,708,852
-----------
Total liabilities............................................. 54,583,127
-----------
EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 764,443
Undivided profits and capital reserves........................ 3,542,168
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 82,367
Cumulative foreign currency translation adjustments........... ( 29,725)
-----------
Total equity capital.......................................... 5,494,537
-----------
Total liabilities and equity capital.......................... $60,077,664
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Gerald L. Hassell } Directors
Alan R. Griffith
</TABLE>
- -------------------------------------------------------------------------------
<PAGE>
Exhibit 25.9
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
___________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
___________________________
Sempra Energy
(Exact name of obligor as specified in its charter)
California 33-0732627
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
101 Ash Street 92101
San Diego, California (Zip code)
(Address of principal executive offices)
___________________________
Guarantee of Preferred Securities of
Sempra Energy Capital Trust III
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Name Address
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Superintendent of Banks of the 2 Rector Street, New York, N.Y. 10006,
State of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
-2-
<PAGE>
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 26th day of April, 1999.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
-------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
- -------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin.................................................... $3,951,273
Interest-bearing balances.................................... 4,134,162
Securities:
Held-to-maturity securities.................................. 932,468
Available-for-sale securities................................ 4,279,246
Federal funds sold and Securities purchased under
agreements to resell......................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,861,802
LESS: Allowance for loan and
lease losses...............................619,791
LESS: Allocated transfer risk
reserve......................................3,572
Loans and leases, net of unearned income, allowance,
and reserve................................................. 37,238,439
Trading Assets................................................ 1,551,556
Premises and fixed assets (including capitalized leases)...... 684,181
Other real estate owned....................................... 10,404
Investments in unconsolidated subsidiaries and associated
companies.................................................... 196,032
Customers' liability to this bank on acceptances
outstanding.................................................. 895,160
Intangible assets............................................. 1,127,375
Other assets.................................................. 1,915,742
-----------
Total assets.................................................. $60,077,664
===========
LIABILITIES
Deposits:
In domestic offices.......................................... $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................... 17,197,743
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase..................................... 1,761,170
Demand notes issued to the U.S. Treasury...................... 125,423
Trading liabilities........................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less.................. 1,903,700
With remaining maturity of more than one year
through three years......................................... 0
With remaining maturity of more than three years............. 31,639
Bank's liability on acceptances executed and outstanding...... 900,390
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,708,852
-----------
Total liabilities............................................. 54,583,127
-----------
EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 764,443
Undivided profits and capital reserves........................ 3,542,168
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 82,367
Cumulative foreign currency translation adjustments........... ( 29,725)
-----------
Total equity capital.......................................... 5,494,537
-----------
Total liabilities and equity capital.......................... $60,077,664
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Gerald L. Hassell } Directors
Alan R. Griffith
</TABLE>
- -------------------------------------------------------------------------------
<PAGE>
Exhibit 25.10
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [__]
___________________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
___________________________
Sempra Energy
(Exact name of obligor as specified in its charter)
California 33-0732627
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
101 Ash Street 92101
San Diego, California (Zip code)
(Address of principal executive offices)
___________________________
Guarantee of Debt Securities of Sempra Energy Holdings
(Title of the indenture securities)
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1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
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Name Address
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Superintendent of Banks of the State 2 Rector Street, New York, N.Y. 10006,
of New York and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-
29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-
44051.)
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7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
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SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 26th day of April, 1999.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
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Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
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Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
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Cash and balances due from depository institutions:
Noninterest-bearing balances and currency
and coin.................................................... $3,951,273
Interest-bearing balances.................................... 4,134,162
Securities:
Held-to-maturity securities.................................. 932,468
Available-for-sale securities................................ 4,279,246
Federal funds sold and Securities purchased under
agreements to resell......................................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income..................................37,861,802
LESS: Allowance for loan and
lease losses...............................619,791
LESS: Allocated transfer risk
reserve......................................3,572
Loans and leases, net of unearned income, allowance,
and reserve................................................. 37,238,439
Trading Assets................................................ 1,551,556
Premises and fixed assets (including capitalized leases)...... 684,181
Other real estate owned....................................... 10,404
Investments in unconsolidated subsidiaries and associated
companies.................................................... 196,032
Customers' liability to this bank on acceptances
outstanding.................................................. 895,160
Intangible assets............................................. 1,127,375
Other assets.................................................. 1,915,742
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Total assets.................................................. $60,077,664
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LIABILITIES
Deposits:
In domestic offices.......................................... $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement subsidiaries,
and IBFs.................................................... 17,197,743
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase..................................... 1,761,170
Demand notes issued to the U.S.Treasury....................... 125,423
Trading liabilities........................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less.................. 1,903,700
With remaining maturity of more than one year
through three years......................................... 0
With remaining maturity of more than three years............. 31,639
Bank's liability on acceptances executed and outstanding...... 900,390
Subordinated notes and debentures............................. 1,308,000
Other liabilities............................................. 2,708,852
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Total liabilities............................................. 54,583,127
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EQUITY CAPITAL
Common stock.................................................. 1,135,284
Surplus....................................................... 764,443
Undivided profits and capital reserves........................ 3,542,168
Net unrealized holding gains (losses) on available-for-sale
securities................................................... 82,367
Cumulative foreign currency translation adjustments........... ( 29,725)
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Total equity capital.......................................... 5,494,537
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Total liabilities and equity capital.......................... $60,077,664
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I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Gerald L. Hassell } Directors
Alan R. Griffith
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