<PAGE>
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SEMPRA ENERGY CAPITAL TRUST I
(Exact name of registrant as specified in its charter)
Delaware 52-6988596
(State of incorporation or organization) (I.R.S. Employer Identification No.)
101 Ash Street, San Diego, CA 92101
(Address of principal executive offices) (Zip Code)
SEMPRA ENERGY
(Exact name of registrant as specified in its charter)
California 33-0732627
(State of incorporation or organization) (I.R.S. Employer Identification No.)
101 Ash Street, San Diego, CA 92101
(Address of principal executive offices) (Zip Code)
Title of each class Name of each exchange on which
to be so registered each class is to be registered
8.90% Cumulative Quarterly Income Preferred New York Stock
Securities, Series A (QUIPS) Exchange
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: 333-77843
Securities to be registered pursuant to Section 12(g) of the Act: None
<PAGE>
Item 1. Description of Registrants' Securities To Be Registered
- -----------------------------------------------------------------
The securities to be registered hereby are the 8.90% Cumulative Quarterly Income
Preferred Securities, Series A ("QUIPS") of Sempra Energy Capital Trust I, a
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Delaware business trust, which are guaranteed by Sempra Energy, a California
corporation (the "Company"), to the extent set forth in the Guarantee Agreement
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between the Company and The Bank of New York, as guarantee trustee (the
"Guarantee"). The particular terms of the QUIPS and the Guarantee are described
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in a prospectus dated May 18, 1999 (the "Base Prospectus") included in the
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registration statement on Form S-3 under the Securities Act of 1933, as amended,
filed by the Company, Sempra Energy Holdings, Sempra Energy Capital Trust I,
Sempra Energy Capital Trust II and Sempra Energy Capital Trust III with the
Securities and Exchange Commission (the "Commission") on May 5, 1999 (File No.
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333-77843) and declared effective by the Commission on May 18, 1999 (including
the documents incorporate by reference therein, the "Registration Statement"),
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and the prospectus supplement dated February 16, 2000 (the "Prospectus
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Supplement," and together with the Base Prospectus, the "Prospectus"), filed
- ---------- ----------
with the Commission pursuant to Rule 424(b)(5) of the Securities Act of 1933, as
amended, in connection with the Registration Statement. The Guarantee and the
Prospectus are deemed to be incorporated by reference herein as set forth in
Item 2 below.
Item 2. Exhibits
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Exhibits heretofore filed with the Commission and designated as set forth below
are hereby incorporated herein by reference and made a part hereof with the same
effect as if filed herewith.
2.1 The Prospectus, filed with the Commission on February 18, 2000
pursuant to Rule 424(b)(5) in connection with the Registration
Statement, is hereby incorporated by reference.
2.2 Certificate of Trust of Sempra Energy Capital Trust I, filed with the
Commission on May 5, 1999, as Exhibit 3.5 to the Registration
Statement, is hereby incorporated by reference.
2.3 Amended and Restated Declaration of Trust dated February 23, 2000.
2.4 Subordinated Indenture between Sempra Energy and The Bank of New York
dated February 23, 2000.
2.5 Form of Subordinated Note (included in Exhibit 2.4 above).
2.6 Form of Preferred Security (included in Exhibit 2.3 above).
2.8 Guarantee Agreement.
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SIGNATURE
Pursuant to the requirement of Section 12 of the Securities Exchange Act of
1934, the registrants has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
SEMPRA ENERGY CAPITAL TRUST I
By: /s/ Charles A. McMonagle
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Charles A. McMonagle
Regular Trustee
Date: February 29, 2000
SEMPRA ENERGY
By: /s/ Charles A. McMonagle
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Charles A. McMonagle
Vice President and Treasurer
Date: February 29, 2000
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EXHIBIT 2.3
__________________________________________
AMENDED AND RESTATED DECLARATION
OF TRUST
of
Sempra Energy Capital Trust I
Dated as of February 23, 2000
__________________________________________
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SEMPRA ENERGY CAPITAL TRUST I
Certain Sections of this Declaration relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Declaration Section
- --------------- -------------------
<S> <C>
(S)310 (a)(1).................................................................. 9.4
(a)(2).................................................................. 9.4
(a)(3).................................................................. 9.6
(a)(4).................................................................. 3.6
(b)..................................................................... 9.5
(S)311 (a)..................................................................... 9.10
(b)..................................................................... 9.10
(S)312 (a)..................................................................... 2.2
(b)..................................................................... 2.2
(c)..................................................................... 2.2
(S)313 (a)..................................................................... 2.3(a)
(a)(4).................................................................. 2.3(b)
(b)..................................................................... 2.3(b)
(c)..................................................................... 11.8
(d)..................................................................... 2.3(c)
(S)314 (a)..................................................................... 2.4
(b)..................................................................... Not Applicable
(c)(1).................................................................. 2.5
(c)(2).................................................................. 2.5
(c)(3).................................................................. Not Applicable
(d)..................................................................... Not Applicable
(e)..................................................................... 2.5
(S)315 (a)..................................................................... 3.6
(b)..................................................................... 2.7, 11.8
(c)..................................................................... 3.6
(d)..................................................................... 3.6
(e)..................................................................... Not Applicable
(S)316 (a)..................................................................... Not Applicable
(a)(1)(A)............................................................... Not Applicable
(a)(1)(B)............................................................... Not Applicable
(a)(2).................................................................. Not Applicable
(b)..................................................................... 2.6
(c)..................................................................... 7.7
(S)317 (a)(1).................................................................. Not Applicable
(a)(2).................................................................. Not Applicable
(b)..................................................................... 6.8
(S)318 (a)..................................................................... 2.1
</TABLE>
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed
to be a part of this Declaration.
<PAGE>
AMENDED AND RESTATED DECLARATION
OF TRUST
OF
SEMPRA ENERGY CAPITAL TRUST I
Dated as of February 23, 2000
THIS AMENDED AND RESTATED DECLARATION OF TRUST, dated and effective as of
February 23, 2000 (this "Declaration"), by and among 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 I (the
"Trust") to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor created 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;
WHEREAS, the Sponsor and the Trustees desire to amend and restate the
Original Declaration as set forth herein to provide for, among other things, (i)
the issuance of the Common Securities by the Trust to the Sponsor, (ii) the
issuance and sale of the Preferred Securities by the Trust pursuant to the
Underwriting Agreement (as defined herein), and (iii) the acquisition by the
Trust from the Sponsor of all of the right, title and interest in the
Subordinated Debt Securities (as defined herein); provided, however, that none
of the amendments hereto are intended to amend any of the provisions included in
the Declaration that are required to be included in an indenture pursuant to the
Trust Indenture Act.
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.
<PAGE>
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, including (i) all exhibits hereto and (ii) for all purposes
of this Declaration and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Declaration and any such modification, amendment or supplement,
respectively;
(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;
(e) the words "herein," "hereof," and "hereunder" and other words of
similar import refer to this Declaration as a whole and not to any particular
Article, Section or subdivision;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration; and
(g) a reference to the singular includes the plural and vice versa.
In addition, the following terms shall have the meanings set forth below.
"Act" has the meaning specified in Section 7.8.
"Additional Amount" means, with respect to Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Officers' Certificate establishing the terms of the Subordinated
Debt Securities pursuant to Section 303 of the Indenture) paid by the Sponsor on
a Like Amount of Subordinated Debt Securities for such period.
"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.
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"Bank" means The Bank of New York, a New York banking corporation, other
than in its capacity as Property Trustee or as Subordinated Debt Securities
Trustee.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person 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 unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person 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 and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 11.9.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Sponsor to have been duly adopted by the
Sponsor's board of directors, or such committee of the board of directors or
officers of the Sponsor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustees.
"Book-Entry Preferred Security Certificates" means a beneficial interest in
the Preferred Security Certificates, ownership and transfers of which shall be
evidenced through book entries by a Clearing Agency as described in Section
6.10.
"Business Day" means a day other than (a) a Saturday or Sunday or (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. C. Sections 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.
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"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, the Preferred Securities shall be registered in global form and
which shall undertake to effect book entry transfers and pledges of the
Preferred Securities. The Depository Trust Company will be the initial Clearing
Agency.
"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 February 23, 2000.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor legislation.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
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.
"Common Securities Guarantee" means the guarantee agreement dated as of
February 23, 2000 of the Sponsor in respect of the Common Securities.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Declaration, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Common Securityholder" means the Holder from time to time of the Common
Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located at 101 Barclay
Street, Floor 21 West, New York, New York 10286, and (ii) when used with
respect to the Subordinated Debt Securities Trustee, the principal office of the
Subordinated Debt Securities Trustee located at 101 Barclay Street, Floor 21
West, New York, New York 10286.
"Definitive Preferred Security Certificates" means either or both (as the
context requires) of (a) Preferred Security Certificates issued as Book-Entry
Preferred Security Certificates as provided in Section 6.10(a) and (b) Preferred
Security Certificates issued in certificated, fully registered form as provided
in Section 6.12.
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"Delaware Trustee" means The Bank of New York (Delaware), a Delaware
banking corporation, solely in its capacity as Delaware Trustee of the Trust and
not in its individual capacity, or its successor in interest in such capacity,
or any successor Delaware Trustee appointed as herein provided.
"Direct Action" has the meaning set forth in Section 3.6(c).
"Distribution" means a distribution payable to Securityholders in
accordance with Section 5.1.
"Distribution Date" has the meaning specified in Section 5.1(a).
"DTC" means The Depository Trust Company, the initial Clearing Agency.
"Event of Default" 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):
(a) the occurrence of an Indenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days, provided that no Deferral Period (as defined in the Officers' Certificate
establishing the Subordinated Debt Securities pursuant to Section 303 of the
Indenture) is continuing; or
(c) default by the Trust in the payment of any Redemption Price of any
Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
provision of this Declaration (other than a covenant or warranty a default in
the performance or breach of which is dealt with in clause (b) or (c) above) and
continuation of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the defaulting Trustee or
Trustees by the Holders of at least 25% in Liquidation Amount of the Outstanding
Preferred Securities 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; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Sponsor to appoint a Successor Property Trustee
within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Guarantor and The Bank of New York, a New York banking corporation, as trustee,
contemporaneously
5
<PAGE>
with the execution and delivery of this Declaration, for the benefit of the
holders of the Preferred Securities, as amended from time to time.
"Guarantor" means Sempra Energy, a California corporation, and its
successors and assigns.
"Indemnified Person" has the meaning specified in Section 9.3(c).
"Indenture" means the Subordinated Indenture dated as of February 23, 2000
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 February 23, 2000 pursuant to Section 301 of the
Indenture.
"Indenture Event of Default" means an "Event of Default," as defined in the
Indenture, with respect to the Subordinated Debt Securities.
"Indenture Redemption Date" means, with respect to any Subordinated Debt
Securities to be redeemed under the Indenture, the date fixed for redemption
under 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" means any action to bring or defend, pay, collect,
compromise, arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Trust.
"Like Amount" means (a) with respect to a redemption of Securities,
Securities having an aggregate Liquidation Amount equal to the aggregate
principal amount of Subordinated Debt Securities to be contemporaneously
redeemed or repaid in accordance with the Indenture the proceeds of which will
be used to pay the Redemption Price of such Securities, and (b) with respect to
a distribution of Subordinated Debt Securities to Securityholders in connection
with a dissolution or liquidation of the Trust, Subordinated Debt Securities
having an aggregate principal amount equal to the aggregate Liquidation Amount
of the Securities of the Holder to whom such Subordinated Debt Securities are
distributed.
"Liquidation Amount" means the stated amount of $25 per Security.
"Liquidation Date" means the date on which Subordinated Debt Securities are
to be distributed to Securityholders in connection with a dissolution and
liquidation of the Trust pursuant to Section 10.4(a).
"Liquidation Distribution" has the meaning specified in Section 10.4(d).
"Majority in Liquidation Amount of the Securities" means, except as
provided in this Declaration and by the Trust Indenture Act, Holder(s) of
Preferred Securities or Common
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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 voted by such
Securityholders represents more than 50% of the above stated aggregate
Liquidation Amount of all Securities of such class.
"Officer's Certificate" means a certificate signed by any one of the
Chairman of the Board, Chief Executive Officer, President, a Vice President, the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Sponsor, and delivered to the
appropriate Trustee. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this Declaration shall
include:
(a) a statement that the officer signing the Officer's Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's Certificate;
(c) a statement that 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 such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Sponsor, and who shall be reasonably
acceptable to the Property Trustee.
"Original Declaration" has the meaning specified in the recitals to this
Declaration.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore executed and delivered under this
Declaration, except:
(a) Securities theretofore canceled by the Property Trustee or delivered
to the Property Trustee for cancellation;
(b) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any 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
Declaration; and
(c) Securities which have been paid or in exchange for or in lieu of which
other Preferred Securities have been executed and delivered pursuant to Sections
6.4, 6.5, 6.10 and
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6.12; provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred Securities have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Preferred Securities owned by the Sponsor, any Trustee or any
Affiliate of the Sponsor or any Trustee shall be disregarded and deemed not to
be Outstanding, except that (i) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Preferred Securities that such Trustee knows to
be so owned shall be so disregarded and (ii) the foregoing proviso shall not
apply at any time when all of the Outstanding Preferred Securities are owned by
the Sponsor, one or more of the Trustees and/or any such Affiliate. Preferred
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Regular
Trustees the pledgee's right so to act with respect to such Preferred Securities
and that the pledgee is not the Sponsor or any Affiliate of the Sponsor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Security Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 6.8 and shall initially be the Bank.
"Payment Account" means a segregated corporate trust account maintained by
the Property Trustee with the Bank in its trust department for the benefit of
the Securityholders in which all amounts paid in respect of the Subordinated
Debt Securities will be held and from which the Property Trustee, through the
Paying Agent, shall make payments to the Securityholders in accordance with
Sections 5.1 and 5.2.
"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 Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Declaration, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Exhibit B.
"Property Trustee" means The Bank of New York, a New York banking
corporation, solely in its capacity as Property Trustee of the Trust and not in
its individual capacity, or its successor in interest in such capacity, or any
Successor Property Trustee appointed as herein provided.
8
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"Record Date" means, with respect to Securities that are held in book-entry
form, the date that is one Business Day before the relevant Distribution Date,
and with respect to Securities that are held in definitive form, the 15/th/ day,
whether or not a Business Day, before the relevant Distribution Date.
"Redemption Date" means, with respect to any Security to be redeemed, the
date fixed for such redemption by or pursuant to this Declaration; provided that
each Indenture Redemption Date and the Stated Maturity (as defined in the
Indenture) of the Subordinated Debt Securities shall be a Redemption Date for a
Like Amount of Securities.
"Redemption Price" means, with respect to any Security, the Liquidation
Amount of such Security, plus accumulated and unpaid Distributions to the
Redemption Date, allocated on a pro rata basis (based on Liquidation Amounts)
among the Securities.
"Regular Trustees" means each of Neal E. Schmale, Frank H. Ault and Charles
A. McMonagle, solely in such Person's capacity as Regular Trustee of the Trust
and not in such Person's individual capacity, or such Regular Trustee's
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Relevant Trustee" shall have the meaning specified in Section 9.7.
"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.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 6.4.
"Securityholder" or "Holder" means a Person in whose name a Security or
Securities is registered in the Securities Register, any such Person being a
beneficial owner within the meaning of the Business Trust Act; provided,
however, that in determining whether the Holders of the requisite amount of
Preferred Securities have voted on any matter provided for in this Declaration,
then for the purpose of any such determination, so long as Definitive Preferred
Security Certificates have not been issued, the term Securityholders or Holders
as used herein shall refer to the Owners.
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"Subordinated Debt Securities" means the 8.90% Subordinated Deferrable
Interest Notes, Series A, due February 23, 2030 to be issued by the Subordinated
Debt Securities Issuer under the Indenture and to be held by the Property
Trustee pursuant to Section 3.14.
"Subordinated Debt Securities Issuer" means Sempra Energy, a California
corporation, and its successors and assigns.
"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 Property Trustee possessing
the qualifications to act as Property Trustee under Section 9.4.
"Tax Event" means that the Sponsor receives an Opinion of Counsel,
experienced in such matters, that as a result of any Tax Change (as defined
below), there is more than an insubstantial risk that (i) the Trust is, or will
be within 90 days after the date of such Opinion of Counsel, subject to United
States federal income tax with respect to income received or accrued on the
Subordinated Debt Securities, (ii) interest payable by the Sponsor or original
issue discount accruing on the Subordinated Debt Securities is not, or within 90
days after the date of such Opinion of Counsel, will not be, deductible by the
Sponsor, in whole or in part, for United States federal income tax purposes; or
(iii) the Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to more than a minimal amount of other taxes, duties,
assessments or other governmental charges. As used above, "Tax Change" means any
of the following that are enacted, promulgated or announced on or after February
16, 2000: (i) amendment to, or change, including any announced prospective
change, in the laws or any regulations under the laws of the United States or
any political subdivision or taxing authority of the United States; or (ii)
official administrative pronouncement or judicial decision interpreting or
applying the laws or regulations stated above whether or not the pronouncement
or decision is issued to or in connection with a proceeding involving the
Sponsor or the Trust or is subject to review or appeal.
"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" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Subordinated Debt Securities, (b) any cash
on deposit in, or owing to, the Payment Account and (c) all proceeds and rights
in respect of the foregoing and any other property and assets for the time being
held or deemed to be held by the Property Trustee pursuant to the trusts of this
Declaration.
"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
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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.
"Underwriting Agreement" means the Pricing Agreement (including the
Underwriting Agreement incorporated by reference therein), dated February 16,
2000, among the Trust, the Sponsor and the underwriters named therein.
"25% in aggregate 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.
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 Sections 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 Securityholders
(a) Each of the Sponsor and the Regular Trustees, on behalf of the Trust,
shall provide the Property Trustee (i) not later than 15 days after each Record
Date of 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 Securityholders ("List of Holders") as of the
preceding respective Record Date, 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
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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 Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee
(a) Within 60 days after May 15 of each year, commencing May 15, 2001, the
Property Trustee shall provide to the Securityholders 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 Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each national stock exchange, the
NASDAQ National Market or such other interdealer quotation system or self-
regulatory organization upon which the Securities are listed or traded
(information regarding each such listing to be provided to the Property Trustee
by the Sponsor), with the Commission and with the Sponsor.
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 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
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 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) of
the Trust Indenture Act may be given in the form of an Officers' Certificate.
Section 2.6 Rights of Securityholders; Events of Default; Waiver
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 3.14, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Securities and they shall have no right to call for any partition or division of
property, profits or rights of the Trust except as described below. The
Securities shall be personal
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property giving only the rights specifically set forth therein and in this
Declaration. The Securities shall have no preemptive or similar rights and when
issued and delivered to Securityholders against payment of the purchase price
therefor will be fully paid and nonassessable by the Trust. The Securityholders,
in their capacities 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.
(b) For so long as any Preferred Securities remain Outstanding, if, upon an
Indenture Event of Default, the Subordinated Debt Securities Trustee fails or
the holders of not less than 25% in principal amount of the outstanding
Subordinated Debt Securities fail to declare the principal of all of the
Subordinated Debt Securities to be immediately due and payable, the Holders of
at least 25% in aggregate Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Sponsor and the
Subordinated Debt Securities Trustee; and upon any such declaration such
principal amount of and the accrued interest on all of the Subordinated Debt
Securities shall become immediately due and payable, provided that the payment
of principal and interest on such Subordinated Debt Securities shall remain
subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to the
Subordinated Debt Securities has been made and before a judgment or decree for
payment of the money due has been obtained by the Subordinated Debt Securities
Trustee as in the Indenture provided, the Holders of a Majority in Liquidation
Amount of the Outstanding Preferred Securities, by written notice to the
Property Trustee, the Sponsor and the Subordinated Debt Securities Trustee, may
rescind and annul such declaration and its consequences if:
(i) the Sponsor has paid or deposited with the Subordinated Debt
Securities Trustee a sum sufficient to pay
(A) all overdue interest on all of the Subordinated Debt
Securities which has become due otherwise than by such declaration of
acceleration;
(B) the principal of (and premium, if any, on) any Subordinated
Debt Securities which have become due otherwise than by such
declaration of acceleration and any interest thereon at the rate or
rates prescribed therefor in the Subordinated Debt Securities or, if
no such rate or rates are so provided, at the rate of interest borne
by the Subordinated Debt Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest which has become due otherwise than by
such declaration of acceleration at the rate or rates prescribed
therefor in the Subordinated Debt Securities or, if no such rate or
rates are so provided, at the rate of interest borne by the
Subordinated Debt Securities; and
(D) all sums paid or advanced by the Subordinated Debt Securities
Trustee under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Subordinated Debt Securities Trustee
and the
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Property Trustee, their agents and counsel and any amounts due to the
Subordinated Debt Securities Trustee under Section 607 of the
Indenture; and
(ii) all Events of Default with respect to the Subordinated Debt
Securities, other than the non-payment of the principal of the Subordinated
Debt Securities which has become due solely by such acceleration, have been
cured or waived as provided in Section 513 of the Indenture.
The Holders of a Majority in Liquidation Amount of the Outstanding
Preferred Securities may, on behalf of the Holders of all the Outstanding
Preferred Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest on the Subordinated Debt
Securities (unless such default has been cured and a sum sufficient to pay all
matured installments of interest and principal and accrued and unpaid interest,
if any, due otherwise than by acceleration has been deposited with the
Subordinated Debt Securities Trustee) or a default in respect of a covenant or
provision which under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Subordinated Debt Security. No such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities all or part of which is represented by Book-Entry Preferred Security
Certificates, a record date shall be established for determining Holders of
Outstanding Preferred Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 2.6(b).
(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.
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(d) The foregoing provisions of Sections 2.6(b) and (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.
Section 2.7 Event of Default; Notice
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 Securityholders, the
Regular Trustees and the Sponsor, notices of all such defaults unless such
defaults have been cured or waived before the giving of such notice (the term
"defaults" for the purposes of this Section 2.7 being hereby defined to be an
Event of Default as, not including any periods of grace provided for herein or
in the Indenture and irrespective of the giving of any notice provided herein or
in the Indenture); 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 Preferred 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 Securityholders.
ARTICLE III.
ESTABLISHMENT OF THE TRUST
Section 3.1 Name
The Trust is named "Sempra Energy Capital Trust I," as such name may be
modified from time to time by the Regular Trustees following written notice to
the Securityholders. 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 of the Delaware Trustee; Principal Place of Business
The address of the Delaware Trustee in the State of Delaware is White Clay
Center, Route 273, Newark, Delaware 19711, or such other address in the State
of Delaware as the Delaware Trustee may designate by written notice to the
Sponsor. 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 Securityholders, the Regular Trustees may
designate another principal office.
Section 3.3 Declaration of Trust; Purpose
The exclusive purposes and functions of the Trust are (i) to issue and sell
Securities and use the proceeds from such sale to acquire the Subordinated Debt
Securities, (ii) to distribute the cash payments it receives on the Subordinated
Debt Securities it owns to the Securityholders, and (iii) to engage in only
those activities necessary, appropriate, convenient or incidental thereto.
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The Trustees, as trustees of the Trust, shall have all the rights, powers and
duties to the extent set forth herein, and the Trustees hereby confirm such role
as Trustees of the Trust. The Property Trustee hereby declares that it will hold
the Trust Property in trust upon and subject to the conditions set forth herein
for the benefit of the Trust and the Securityholders. The Regular Trustees shall
have all rights, powers and duties set forth herein and in accordance with
applicable law with respect to accomplishing the purposes of the Trust. 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
set forth herein. The Delaware Trustee shall be one of the Trustees of the Trust
for the sole and limited purpose of fulfilling the requirements of Section
3807(a) of the Delaware Business Trust Act.
Section 3.4 Authority of Trustees
The Trustees shall conduct the affairs of the Trust in accordance with the
terms of this Declaration. Subject to the limitations set forth in Section 3.8,
and in accordance with the following Sections 3.5 and 3.6, the Trustees shall
have the authority to enter into all transactions and agreements determined by
the Trustees to be appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees under this Declaration, and to perform all
acts in furtherance thereof.
Section 3.5 Power and Authority of Regular Trustees
(a) Without limiting Section 3.4, each Regular Trustee, acting singly or
collectively, shall have the power and authority to act on behalf of the Trust,
including, without limitation, with respect to the following matters:
(i) the issuance and sale of the Securities;
(ii) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;
(iii) assisting in the registration of the Preferred Securities
under the Securities Act and under state securities or blue sky laws,
and the qualification of this Declaration as a trust indenture under
the Trust Indenture Act;
(iv) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Sponsor and the registration of the Preferred Securities under the
Exchange Act and the preparation, execution and filing, on behalf of
the Trust, of all periodic and other reports and other documents
pursuant to the foregoing;
(v) assisting in the sending of notices (other than notices of
default) and other information regarding the Securities and the
Subordinated Debt Securities to the Securityholders in accordance with
this Declaration;
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(vi) consenting to the appointment of a Paying Agent in
accordance with this Declaration;
(vii) execution of the Securities on behalf of the Trust in
accordance with this Declaration;
(viii) execution and delivery of closing certificates pursuant to
the Underwriting Agreement and application for a taxpayer
identification number for the Trust;
(ix) unless otherwise provided by applicable law, to execute on
behalf of the Trust (either acting alone or together with any or all
of the Regular Trustees) any documents that the Regular Trustees have
the power to execute pursuant to this Declaration; and
(x) the taking of any action incidental to the foregoing as
the Regular Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration for the
benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).
(b) Notwithstanding anything herein to the contrary, the Regular Trustees
are authorized, and the Regular Trustees are directed, to conduct the affairs of
the Trust and to operate the Trust so that (i) the Trust will not be deemed to
be an "investment company" required to be registered under the Investment
Company Act, (ii) the Trust will be classified as a grantor trust for United
States Federal income tax purposes and (iii) the Subordinated Debt Securities
will be treated as indebtedness of the Sponsor for United States Federal income
tax purposes and shall not take any action which is inconsistent with or
contrary to the these purposes. In this connection, the Sponsor and the
Trustees are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Declaration, that each of the Sponsor and
the Trustees determines in its discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material
respect the interests of the Holders of the Preferred Securities.
Subject to this Section 3.5, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.6.
The Trust initially appoints the Property Trustee as transfer agent and
registrar for the Preferred Securities.
Section 3.6 Powers and Duties of the Property Trustee
(a) The Property Trustee shall have the power, duty and authority to act
on behalf of the Trust with respect to the following matters:
(i) the establishment of the Payment Account;
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(ii) the receipt of the Subordinated Debt Securities;
(iii) the collection of interest, principal and any other payments
made in respect of the Subordinated Debt Securities in the Payment Account;
(iv) the distribution through the Paying Agent of amounts owed to
the Securityholders in respect of the Securities;
(v) the exercise of all of the rights, powers and privileges of a
holder of the Subordinated Debt Securities;
(vi) the sending of notices of default and other information
regarding the Securities and the Subordinated Debt Securities to the
Securityholders in accordance with this Declaration;
(vii) the distribution of the Trust Property in accordance with the
terms of this Declaration;
(viii) to the extent provided in this Declaration, assisting in the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation with
respect to the Trust with the Secretary of State of the State of Delaware;
(ix) after an Event of Default (other than under paragraph (b), (c),
(d) or (e) of the definition of such term if such Event of Default is by or
with respect to the Property Trustee), the taking of any action incidental
to the foregoing as the Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this Declaration and
protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such action on
any particular Securityholder);
(x) 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. and
(xi) any of the duties, liabilities, powers or the authority of the
Regular Trustees set forth in Section 3.5(a)(v), (vi) and (x);
and in the event of a conflict between the actions of the Regular Trustees
and those of the Property Trustee, the actions of the Property Trustee shall
prevail.
(b) 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.
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(c) 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 Liquidation Amount of the Preferred
Securities of such Holder (a "Direct Action").
(d) 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 Securityholders pursuant to the terms of
the Securities; or
(ii) a Successor Property Trustee has been appointed and accepted
that appointment in accordance with Section 9.8.
(e) 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 Securityholders, 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.
(f) The Property Trustee may authorize one or more Paying Agents 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 Section 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.
(g) Subject to this Section 3.6, the Property Trustee shall have none of
the powers or the authority of the Regular Trustees set forth in Section 3.5 of
this Declaration.
(h) The Property Trustee must 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
forth in Section 3.5(b) 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
3.5(b) of this Declaration.
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(i) 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
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.
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;
(j) 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 (i)
of this Section;
(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;
(iv) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with the Sponsor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 4.1 and except to the extent
otherwise required by law;
(v) the Property Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees or the Sponsor with their respective
duties under this Declaration, nor shall the Property Trustee be liable for
the default or misconduct of the Regular Trustees or the Sponsor; and
(vi) 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.
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(k) 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 3.7 Certain Rights of the Property Trustee
Subject to the provisions of Section 3.6:
(a) 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; 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;
(b) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced by an Officer's
Certificate;
(c) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
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 Officer's 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 (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(e) the Property Trustee may consult with counsel of its selection and the
written advice of such counsel or any 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 to be taken by it hereunder in good faith
and in reliance thereon and in accordance with such advice or Opinion of
Counsel. 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 of the Securityholders pursuant to this Declaration, unless
such Securityholders shall have provided to the Property Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses (including
reasonable attorney's fees and expenses) and liabilities which might be incurred
by it in compliance 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,
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request, consent, order, approval, bond, debenture, note or other paper or
document, but the Property Trustee may make such further inquiry or
investigation into such facts or matters as it considers reasonably necessary in
order to carry out its obligations in the administration of this Declaration,
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;
(h) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due care by
it hereunder;
(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 written instructions from the Securityholders which
written instructions may only be given by the Holders of the same
proportion in aggregate 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 written instructions are received; and
(iii) shall be protected in acting in accordance with such written
instructions;
(j) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Declaration;
(k) the Property Trustee shall not be deemed to have notice of any default
or Event of Default unless a Responsible Officer of the Property Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Property Trustee at the Corporate Trust Office
of the Property Trustee, and such notice references the Securities and 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 each agent, custodian or other Person employed by
the Property Trustee to act hereunder, and shall be enforceable by the Property
Trustee in each of its capacities hereunder.
No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
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permissive power or authority available to the Property Trustee shall be
construed to be a duty to act in accordance with such powers and authority.
Section 3.8 Prohibition of Actions by the Trust and the Trustees
So long as this Declaration remains in effect, the Trust (or the Trustees
acting on behalf of the Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby. In
particular, the Trustees (acting on behalf of he Trust) shall not:
(i) acquire any investments other than the Subordinated Debt
Securities,
(ii) engage in any activities not authorized by this Declaration,
(iii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein,
including to Securityholders, except as expressly provided herein,
(iv) take any action that would cause the Trust to fail or cease to
qualify as a "grantor trust" for United States federal income tax purposes,
(v) incur any indebtedness for borrowed money or issue any other
debt, or
(vi) take or consent to any action that would result in the placement
of a lien on any of the Trust Property.
The Property Trustee shall defend all claims and demands of all Persons at
any time claiming any lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders;
provided, however, that (x) all expenses relating to such defense shall be borne
by the Sponsor and (y) the Property Trustee shall be fully indemnified by the
Sponsor for all costs incurred in connection with such defense.
Section 3.9 Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Certificates shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees shall not be accountable for the use or
application by the Sponsor of the proceeds of the Subordinated Debt Securities.
Section 3.10 Organizational Expenses
The Sponsor shall pay organizational expenses of the Trust as they arise or
shall, upon request of any Trustee, promptly reimburse such Trustee for any such
expenses paid by such Trustee. The Sponsor shall make no claim upon the Trust
Property for the payment of such expenses.
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Section 3.11 Rights and Responsibilities of Sponsor
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the right and responsibility to assist the Trust with respect
to, or effect on behalf of the Trust, the following (and any actions taken by
the Sponsor in furtherance of the following prior to the date of this
Declaration are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission of
prospectus supplements and post-effective amendments to the registration
statement relating to the Preferred Securities on the appropriate form in
relation to the Preferred Securities;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to
the Trustees of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any
such States;
(iii) the preparation for filing by the Trust of an application 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) the preparation for filing by the Trust with the Commission of a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, including any amendments thereto, if
required;
(v) the negotiation of the terms of the Underwriting Agreement
providing for the sale of the Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
Section 3.12 Issuance of Preferred Securities
The Sponsor and the Trust have executed and delivered the Underwriting
Agreement. On the Closing Date, a Regular Trustee, on behalf of the Trust,
shall execute in accordance with Section 6.2, and upon written direction the
Property Trustee shall make available to the underwriters named in the
Underwriting Agreement, an authentication order and Preferred Security
Certificates, registered in the name of the nominee of the initial Clearing
Agency, evidencing an aggregate of 8,000,000 Preferred Securities having an
aggregate Liquidation Amount of $200,000,000, against receipt by the Property
Trustee of the aggregate purchase price of such Preferred Securities of
$200,000,000.
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Section 3.13 Issuance of Common Securities
On the Closing Date, a Regular Trustee, on behalf of the Trust, shall
execute in accordance with Section 6.2, and the Property Trustee shall deliver
to the Sponsor, Common Security Certificates, registered in the name of the
Sponsor, evidencing an aggregate of 247,440 Common Securities having an
aggregate Liquidation Amount of $6,186,000 against receipt by the Property
Trustee from the Sponsor of such amount. Contemporaneously therewith, a Regular
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Sponsor the Subordinated Debt Securities, registered in the name of the Property
Trustee (in its capacity as such) and having an aggregate principal amount equal
to $206,186,000, and, in satisfaction of the purchase price for such
Subordinated Debt Securities, the Property Trustee, on behalf of the Trust,
shall deliver to the Sponsor the sum of $206,186,000 (being the sum of the
amounts delivered to the Property Trustee pursuant to (i) the second sentence of
Section 3.12 and (ii) the first sentence of this Section 3.13).
Section 3.14 Title to Property of the Trust
Except as provided in Section 3.6 with respect to the Subordinated Debt
Securities and the Payment Account or as otherwise provided in this Declaration,
legal title to all Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and administered by the
Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Declaration.
ARTICLE IV.
PAYMENT ACCOUNT
Section 4.1 Payment Account
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Declaration. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Subordinated Debt Securities. Amounts
held in the Payment Account shall not be invested by the Property Trustee
pending distribution thereof.
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ARTICLE V.
DISTRIBUTIONS; REDEMPTION
Section 5.1 Distributions
(a) The Securities represent undivided beneficial interests in the Trust
Property, and Distributions (including of Additional Amounts) will be made on
the Securities at the rate and on the dates that payments of interest are made
on the Subordinated Debt Securities. Accordingly:
(i) Distributions on the Securities shall be cumulative, and will
accumulate whether or not there are funds of the Trust available for the
payment of Distributions. Distributions shall accrue from February 23,
2000, and, except in the event (and to the extent) that the Sponsor
exercises its right to defer the payment of interest on the Subordinated
Debt Securities pursuant to the Indenture (the period during which such
interest is deferred, a "Deferral Period"), shall be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year,
commencing on March 31, 2000. If any date on which a Distribution is
otherwise payable on the Securities is not a Business Day, then the payment
of such Distribution shall 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, payment of such Distribution shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on such date (each date on which distributions are
payable in accordance with this Section 5.1(a), a "Distribution Date").
(ii) Assuming payments of interest on the Subordinated Debt
Securities are made when due (and before giving effect to Additional
Amounts, if applicable), Distributions on the Securities shall be payable
at a rate 8.90% per annum of the Liquidation Amount of the Securities. The
amount of Distributions payable for any full period shall be computed on
the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. The
amount of Distributions payable for any period shall include the Additional
Amounts, if any.
(iii) Distributions on the Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution
Date only to the extent that the Trust has funds then on hand and available
in the Payment Account for the payment of such Distributions.
(b) Distributions on the Securities with respect to a Distribution Date
shall be payable to the Holders thereof as they appear on the Securities
Register for the Securities on the relevant Record Date. Distributions on the
Securities not paid when due, including during any Deferral Period, will
accumulate additional Distributions, compounded quarterly, at the rate at which
payments of interest are made on the Subordinated Debt Securities, to the extent
permitted by
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law, and shall be made to the Holders thereof as they appear on the Securities
Register for the relevant Record Date for the next Distribution Date on which
Distributions are actually made.
Section 5.2 Redemption
(a) If the Sponsor repays or redeems the Subordinated Debt Securities,
whether at their Stated Maturity (as defined in the Indenture), upon
acceleration after an Indenture Event of Default or upon early redemption, the
Property Trustee will redeem a Like Amount of Securities on the redemption date
set for the Subordinated Debt Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee at the
expense of the Sponsor by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date (or, in the event
that the redemption results from acceleration after the occurrence of an
Indenture Event of Default and the Property Trustee is unable to give such
notice within such period, as soon as practicable) to each Securityholder to be
redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
(iv) if less than all the Outstanding Securities are to be redeemed,
the identification and the total Liquidation Amount of the particular
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that Distributions
thereon will cease to accrue on and after said date, except as provided in
Section 5.2(d).
(c) The Securities redeemed on each Redemption Date shall be redeemed at
the Redemption Price with the proceeds from the contemporaneous redemption of
Subordinated Debt Securities. Redemptions of the Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then, by 2:00 p.m., New York City time, on the Redemption
Date, provided that the Property Trustee has received such funds by 10:00 a.m.
New York city time on such Redemption Date, and subject to Section 5.2(c), the
Property Trustee will, so long as the Preferred Securities are in book-entry-
only form, irrevocably deposit with the Clearing Agency for the Preferred
Securities funds sufficient to pay the applicable Redemption Price and will give
such Clearing Agency instructions with respect to payment of the Redemption
Price to the holders of the Preferred Securities in accordance with the
procedures set forth in the applicable agreement between the Property Trustee
and such Clearing Agency. If the Preferred Securities are no longer
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in book-entry-only form, the Property Trustee, subject to Section 5.2(c), will
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent instructions and authority to
pay the Redemption Price to the Holders thereof upon surrender of their
Preferred Security Certificates in accordance with the notice of redemption.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Securities called for redemption shall be payable to the
Holders of such Securities as they appear on the Register for the Securities on
the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of Securityholders holding Securities so called
for redemption will cease, except the right of such Securityholders to receive
the Redemption Price and any Distribution payable on or prior to the Redemption
Date, but without interest, and such Securities will cease to be outstanding. In
the event that any date on which any Redemption Price is payable 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. In the event that payment of the Redemption Price in
respect of any Securities called for redemption is improperly withheld or
refused and not paid either by the Trust or by the Guarantor pursuant to the
Guarantee, Distributions on such Securities will continue to accrue, at the then
applicable rate, from the Redemption Date originally established by the Trust
for such Securities to the date such Redemption Price is actually paid, in which
case the actual payment date will be the date fixed for redemption for purposes
of calculating the Redemption Price.
(e) Payment of the Redemption Price on the Securities shall be made to the
Holders thereof as they appear on the Securities Register for the Securities on
the relevant record date, which shall be one Business Day prior to the relevant
Redemption Date; provided, however, that in the event that the Preferred
Securities do not remain in book-entry-only form, the relevant record date shall
be the date 15 days prior to the relevant Redemption Date.
(f) Subject to Section 5.3(a), if less than all the Outstanding Securities
are to be redeemed on a Redemption Date, then the aggregate Liquidation Amount
of Securities to be redeemed shall be allocated on a pro rata basis (based on
Liquidation Amounts) among the Common Securities and the Preferred Securities.
The particular Preferred Securities and Common Securities to be redeemed shall
be selected on a pro rata basis (based upon Liquidation Amounts) not more than
60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities and Common Securities, respectively, not
previously called for redemption, by such method (including, without limitation,
by lot) as the Property Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $25 or an
integral multiple of $25 in excess thereof) of the Liquidation Amount of
Preferred Securities and Common Securities, respectively, of a denomination
larger than $25. The Property Trustee shall promptly notify the Security
Registrar in writing of the Preferred Securities and Common Securities selected
for redemption and, in the case of any Preferred Securities or Common Securities
selected for partial redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Declaration, unless the context otherwise requires, all
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provisions relating to the redemption of Securities shall relate, in the case of
any Preferred Securities or Common Securities, as applicable, redeemed or to be
redeemed only in part, to the portion of the Liquidation Amount of Preferred
Securities or Common Securities, as applicable, that has been or is to be
redeemed.
Section 5.3 Subordination of Common Securities
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, and the Redemption Price of, the Securities, as applicable, shall be made,
subject to Section 5.2(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the Securities;
provided, however, that if on any Distribution Date or Redemption Date any Event
of Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable) on, or Redemption Price of, any
Common Security, and no other payment on account of the redemption, liquidation
or other acquisition of Common Securities, shall be made unless payment in full
in cash of all accumulated and unpaid Distributions (including Additional
Amounts, if applicable) on all Outstanding Preferred Securities for all
Distribution periods terminating on or prior thereto, or in the case of payment
of the Redemption Price the full amount of such Redemption Price on all
Outstanding Preferred Securities, shall have been made or provided for, and all
funds immediately available to the Property Trustee shall first be applied to
the payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or the Redemption Price of, Preferred Securities then due and
payable.
(b) In the case of the occurrence of any Event of Default resulting from
any Indenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
this Declaration until the effect of all such Events of Default with respect to
the Preferred Securities have been cured, waived or otherwise eliminated. Until
any such Event of Default under this Declaration with respect to the Preferred
Securities has been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Preferred Securities
and not the Holder of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee to act
on their behalf.
Section 5.4 Payment Procedures
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons' accounts at such Clearing Agency
on the applicable Distribution Dates in accordance with its procedures.
Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Common
Securityholder. Any Distributions in respect of Preferred Securities that remain
unclaimed for a period of two years following the applicable Distribution Date
shall be paid to the Holder of the Common Securities.
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Section 5.5 Tax Returns and Reports
The Regular Trustees shall prepare (or cause to be prepared), at the
Sponsor's expense, and file all United States federal, state and local tax and
information returns, payee statements and reports required to be filed by or in
respect of the Trust. In this regard, the Regular Trustees shall (a) prepare and
file (or cause to be prepared and filed) the appropriate Internal Revenue
Service form required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to be prepared and furnished)
to each Securityholder the appropriate Internal Revenue Service form required to
be provided. The Regular Trustees shall provide the Sponsor and the Property
Trustee with a copy of all such returns and reports promptly after such filing
or furnishing. The Trustees and the Paying Agent shall comply with United States
federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the
Securities.
Section 5.6 Payment of Taxes, Duties, etc. of the Trust
Upon receipt under the Subordinated Debt Securities of Additional Sums, the
Property Trustee, pursuant to written instructions from the Sponsor detailing
the payments to be made, shall promptly pay at the expense of the Sponsor any
taxes, duties or governmental charges of whatsoever nature (other than
withholding taxes) imposed on the Trust by the United States or any other taxing
authority.
Section 5.7 Payments under Indenture or Pursuant to Direct Actions
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder has directly
received pursuant to the Officers' Certificate establishing the Subordinated
Debt Securities pursuant to Section 303 of the Indenture or Section 3.6(c) of
this Declaration.
ARTICLE VI.
TRUST SECURITIES CERTIFICATES
Section 6.1 Initial Ownership
Upon the creation of the Trust and until the issuance of the Securities,
and at any time during which no Securities are outstanding, the Sponsor shall be
the sole beneficial owner of the Trust.
Section 6.2 Certificates
The Preferred Security Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Security Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples thereof. The
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Regular Trustee. Certificates bearing the manual signatures of
individuals who
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were, at the time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust, shall be validly issued and entitled to the
benefits of this Declaration, notwithstanding that such individuals or any of
them shall have ceased to be so authorized prior to the delivery of such
Certificates or did not hold such offices at the date of delivery of such
Certificates. A transferee of a Certificate shall become a Securityholder, and
shall be entitled to the rights and subject to the obligations of a
Securityholder hereunder, upon due registration of such Certificate in such
transferee's name pursuant to Sections 6.4, 6.10 and 6.12.
Section 6.3 Execution and Delivery of Certificates
At the Closing Date the Regular Trustees shall cause Certificates to be
executed on behalf of the Trust and delivered by the Property Trustee as
provided in Sections 3.12 and 3.13.
Section 6.4 Registration and Transfer and Exchange of Preferred Security
Certificates
The Sponsor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 6.7, a register or registers for the purpose of
registering Certificates and transfers and exchanges of Preferred Security
Certificates (the "Securities Register") in which the registrar designated by
the Sponsor (the "Securities Registrar"), subject to such reasonable regulations
as it may prescribe, shall provide for the registration of Preferred Security
Certificates and Common Security Certificates (subject to Section 6.9 in the
case of the Common Security Certificates) and registration of transfers and
exchanges of Preferred Security Certificates as herein provided. The Bank shall
be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Security
Certificate at the office or agency maintained pursuant to Section 6.7, the
Regular Trustees or any one of them shall execute and deliver to the Property
Trustee, and the Property Trustee shall deliver, in the name of the designated
transferee or transferees, one or more new Preferred Security Certificates in
authorized denominations of a like aggregate Liquidation Amount dated the date
of execution by such Regular Trustee or Trustees.
The Securities Registrar shall not be required to register the transfer of
any Preferred Securities that have been called for redemption. At the option of
a Holder, Preferred Security Certificates may be exchanged for other Preferred
Security Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Preferred Security
Certificates to be exchanged at the office or agency maintained pursuant to
Section 6.7.
Every Preferred Security Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Preferred Security Certificate surrendered for registration of transfer or
exchange shall be canceled and subsequently disposed of by the Property Trustee
in accordance with such Person's customary practice. No service charge shall be
made for any registration of transfer or exchange of Preferred Security
Certificates, but the Securities Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any
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transfer or exchange of Preferred Security Certificates.
Section 6.5 Mutilated, Destroyed, Lost or Stolen Trust Certificates
If (a) any mutilated Certificate shall be surrendered to the Securities
Registrar, or if the Securities Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b) there
shall be delivered to the Securities Registrar and the Regular Trustees such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, the Regular Trustees, or any one of them, on behalf of
the Trust shall execute and make available for delivery, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Certificate under this Section, the Regular Trustees or the
Securities Registrar 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 undivided beneficial interest in the assets of the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 6.6 Persons Deemed Securityholders
The Trustees or the Securities Registrar shall treat the Person in whose
name any Certificate shall be registered in the Securities Register as the owner
of such Certificate for the purpose of receiving Distributions and for all other
purposes whatsoever, and neither the Trustees nor the Securities Registrar shall
be bound by any notice to the contrary.
Section 6.7 Maintenance of Office or Agency
The Property Trustee shall designate an office or offices or agency or
agencies where Preferred Security Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Certificates may be served. The Property Trustee
initially designates its Corporate Trust Office as its office and agency for
such purposes. The Property Trustee shall give prompt written notice to the
Sponsor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
Section 6.8 Appointment of Paying Agent
The Paying Agent shall make distributions to Securityholders from the
Payment Account and shall report the amounts of such distributions to the
Property Trustee and the Regular Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account for the purpose of
making the distributions referred to above. The Property Trustee may revoke such
power and remove the Paying Agent in its sole discretion. The Paying Agent shall
initially be the Bank, and any co-paying agent chosen by the Bank, and
reasonably acceptable to the Regular Trustees. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Regular Trustees and the Property Trustee. In the event
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that the Bank shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Property Trustee shall
appoint a successor that is acceptable to the Regular Trustees to act as Paying
Agent (which shall be a bank or trust company). The Property Trustee shall cause
such successor Paying Agent or any additional Paying Agent appointed by the
Property Trustee to execute and deliver to the Trustees an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with the
Trustees that as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the Securityholders
in trust for the benefit of the Securityholders entitled thereto until such sums
shall be paid to such Securityholders. The Paying Agent shall return all
unclaimed funds to the Property Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Property
Trustee. The provisions of Sections 3.6, 3.7 and 9.3 shall apply to the Bank
also in its role as Paying Agent, for so long as the Bank shall act as Paying
Agent and, to the extent applicable, to any other paying agent appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
Section 6.9 Ownership of Common Securities by Sponsor
On the Closing Date the Sponsor shall acquire and retain beneficial and
record ownership of the Common Securities. To the fullest extent permitted by
law, other than a transfer in connection with a consolidation or merger of the
Sponsor into another corporation, or any conveyance, transfer or lease by the
Sponsor of its properties and assets substantially as an entirety to any Person,
pursuant to Section 801 of the Indenture, any attempted transfer of the Common
Securities shall be void. The Regular Trustees shall cause each Common Security
Certificate issued to the Sponsor to contain a legend stating "THIS CERTIFICATE
IS NOT TRANSFERABLE EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES SET FORTH IN THE
DECLARATION (AS DEFINED BELOW)."
Section 6.10 Book-Entry Preferred Security Certificates; Common Security
Certificate
(a) The Preferred Security Certificates, upon original issuance, will be
issued in the form of a typewritten Preferred Security Certificate or
Certificates representing Book-Entry Preferred Security Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Security Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Preferred Security Certificate representing such Owner's interest in
such Preferred Securities, except as provided in Section 6.12. Unless and until
Definitive Preferred Security Certificates have been issued to Owners pursuant
to Section 6.12:
(i) the provisions of this Section 6.10(a) shall be in full force and
effect;
(ii) the Securities Registrar, the Sponsor and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this
Declaration relating to the Book-Entry Preferred Security Certificates
(including the payment of the Liquidation Amount
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of and Distributions or Redemption Price on the Preferred Securities
evidenced by Book-Entry Preferred Security Certificates and the giving of
instructions or directions to Owners of Preferred Securities evidenced by
Book-Entry Preferred Security Certificates) as the sole Holder of Preferred
Securities evidenced by Book-Entry Preferred Security Certificates and
shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 6.10 conflict
with any other provisions of this Declaration, the provisions of this
Section 6.10 shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred Security
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Trust's agreement with the DTC, unless and until Definitive
Preferred Security Certificates are issued pursuant to Section 6.12, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants.
(b) A single Common Security Certificate representing the Common
Securities shall be issued to the Sponsor in the form of a definitive Common
Security Certificate.
Section 6.11 Notices to Clearing Agency
To the extent that a notice or other communication to the Owners is
required under this Declaration, unless and until Definitive Preferred Security
Certificates shall have been issued to Owners pursuant to Section 6.12, the
Trustees shall give all such notices and communications specified herein to be
given to Owners to the Clearing Agency, and shall have no obligations to the
Owners.
Section 6.12 Definitive Preferred Security Certificates
If (a) the Sponsor advises the Trustees in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Preferred Security Certificates, and the Sponsor is unable to
locate a qualified successor, (b) the Sponsor at its option advises the Trustees
in writing that it elects to terminate the book-entry system through the
Clearing Agency or (c) after the occurrence of an Indenture Event of Default,
Owners of Preferred Security Certificates representing beneficial interests
aggregating at least a Majority in Liquidation Amount of the Outstanding
Preferred Securities advise the Regular Trustees and the Property Trustee in
writing that the continuation of a book-entry system through the Clearing Agency
is no longer in the best interest of the Owners of Preferred Security
Certificates, then the Regular Trustees shall notify the Clearing Agency and the
Clearing Agency shall notify all Owners of Preferred Security Certificates of
the occurrence of any such event and of the availability of the Definitive
Preferred Security Certificates to Owners requesting the same. Upon surrender to
the Regular Trustees or the Securities Registrar of the Preferred Security
Certificate or Certificates representing the Book Entry Preferred Security
Certificates by the Clearing Agency, accompanied by registration instructions,
the Regular Trustees, or any one of
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them, shall execute the Definitive Preferred Security Certificates in accordance
with the instructions of the Clearing Agency. Neither the Securities Registrar
nor the Trustees shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred Security Certificates,
the Trustees shall recognize the Holders of the Definitive Preferred Security
Certificates as Securityholders. 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 the
execution thereof by the Regular Trustees or any one of them.
ARTICLE VII.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 7.1 Limitation on Voting Rights
(a) Except as provided in this Section, in Sections 3.6, 9.7 and 11.2 and
in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, be construed so as to
constitute the Securityholders from time to time as partners or members of an
association.
(b) So long as any Subordinated Debt Securities are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Subordinated Debt
Securities Trustee, or executing any trust or power conferred on the Property
Trustee with respect to such Subordinated Debt Securities, (ii) waive any past
default which is waivable under Section 513 of the Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the
Subordinated Debt Securities shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Subordinated Debt
Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a Majority in aggregate
Liquidation Amount of all Outstanding Preferred Securities, provided, however,
that where a consent under the Indenture would require the consent of each
Holder of Subordinated Debt Securities affected thereby, no such consent shall
be given by the Property Trustee without the prior written consent of each
Holder of Majority in Liquidation Amount of all Outstanding Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice of default
received from the Subordinated Debt Securities Trustee with respect to the
Subordinated Debt Securities. In addition to obtaining the foregoing approvals
of the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Sponsor, obtain an Opinion of
Counsel experienced in such matters to the effect that such action shall not
cause the Trust to fail to be classified as a grantor trust for United States
Federal income tax purposes.
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(c) If any proposed amendment to this Declaration provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to this Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Declaration, then the Holders of
Outstanding Preferred Securities as a 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 the Holders of at least a Majority in Liquidation
Amount of the Outstanding Preferred Securities. Notwithstanding any other
provision of this Declaration, no amendment to this Declaration may be made if,
as a result of such amendment, it would cause the Trust to fail to be classified
as a grantor trust for United States Federal income tax purposes.
Section 7.2 Notice of Meetings
Notice of all meetings of the Holders of Preferred Securities, stating the
time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 11.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 7.3 Meetings of Preferred Securityholders
No annual meeting of Securityholders is required to be held. The Property
Trustee, however, shall call a meeting of Preferred Securityholders to vote on
any matter upon the written request of the Preferred Securityholders of record
of 25% or more of the Preferred Securities (based upon their aggregate
Liquidation Amount) and the Regular Trustees or the Property Trustee may, at any
time in their discretion, call a meeting of Preferred Securityholders to vote on
any matters as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon their aggregate Liquidation Amount), present in person or
by proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Preferred
Securityholders of record present, in person or by proxy, holding a majority of
the Preferred Securities (based upon their aggregate Liquidation Amount) held by
the Preferred Securityholders of record present, either in person or by proxy,
at such meeting shall constitute the action of the Preferred Securityholders,
unless this Declaration requires a greater number of affirmative votes.
Section 7.4 Voting Rights
Securityholders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Securities in respect of any matter as to which such
Securityholders are entitled to vote.
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Section 7.5 Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Property Trustee, or with such
other officer or agent of the Trust as the Property Trustee may direct, for
verification prior to the time at which such vote shall be taken. Pursuant to a
resolution of the Property Trustee, proxies may be solicited in the name of the
Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Securities are held
jointly by several persons, any one of them may vote at any meeting in person or
by proxy in respect of such Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Securities. A proxy purporting to be executed by or
on behalf of a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
Section 7.6 Securityholder Action by Written Consent
Any action which may be taken by Securityholders at a meeting may be taken
without a meeting and without prior notice if Securityholders holding a majority
of all Outstanding Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Declaration) shall consent to the
action in writing.
Section 7.7 Record Date for Voting and Other Purposes
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or to act by written consent, or to
participate in any distribution on the Securities in respect of which a record
date is not otherwise provided for in this Declaration, or for the purpose of
any other action, the Regular Trustees or the Property Trustee may from time to
time fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of a distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 7.8 Acts of Securityholders
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Declaration to be given, made or
taken by Securityholders or Owners may be embodied in and evidenced by one or
more written instruments of substantially similar tenor signed by such
Securityholders or Owners in person or by an agent duly appointed in writing;
and, except as otherwise expressly provided herein, such action shall become
effective when such written instrument or instruments are delivered to the
Property Trustee. Such written instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders or Owners signing such written instrument or
instruments. Proof of execution of any such written instrument or of a writing
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appointing any such agent shall be sufficient for any purpose of this
Declaration and (subject to Section 8.1) conclusive in favor of the Trustees, 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 his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
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 any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Security shall bind every future
Securityholder of the same Security and the Securityholder 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
Trustees or the Trust in reliance thereon, whether or not notation of such
action is made upon such Security.
Without limiting the foregoing, a Securityholder 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 Liquidation 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 liquidation amount.
If any dispute arises between the Securityholders and the Property Trustee
or among such Securityholders or the Trustees with respect to the authenticity,
validity or binding nature of any request, demand, authorization, direction,
consent, waiver or other Act of such Securityholder or Trustee under this
Article VII, then the determination of such matter by the Property Trustee shall
be conclusive and binding with respect to such matter.
Section 7.9 Inspection of Records
Upon reasonable notice to the Regular Trustees and the Property Trustee,
the records of the Trust shall be open to inspection by Securityholders during
normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES
Section 8.1 Representations and Warranties of the Property Trustee
The Property Trustee and the Delaware Trustee, each severally on behalf of
and as to
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itself, hereby represents and warrants for the benefit of the Sponsor and the
Securityholders that:
(a) the Property Trustee is a New York banking corporation validly existing
and in good standing under the laws of the State of New York;
(b) the Property Trustee has the requisite power and authority to execute,
deliver and perform its obligations under this Declaration and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Declaration;
(c) the Delaware Trustee is a Delaware banking corporation duly organized,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Declaration and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Declaration;
(e) this Declaration has been duly authorized, executed and delivered by
the Property Trustee and the Delaware Trustee and constitutes the valid and
legally binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its 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; and
(f) the execution, delivery and performance of this Declaration has been
duly authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and does not require any approval of
stockholders of the Property Trustee or the Delaware Trustee.
Section 8.2 Representations and Warranties of Sponsor
The Sponsor hereby represents and warrants that:
(a) this Declaration has been duly authorized, executed and delivered by
the Sponsor and constitutes the valid and legally binding agreement of the
Sponsor enforceable against it in accordance with its 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;
(b) the Certificates issued on the Closing Date on behalf of the Trust have
been duly authorized and will have been duly and validly executed, issued and
delivered by the Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Declaration and the Securityholders
will be, as of each such date, entitled to the benefits of this Declaration; and
(c) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political
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subdivision thereof in connection with the execution, delivery and performance
by the Property Trustee or the Delaware Trustee, as the case may be, of this
Declaration.
ARTICLE IX.
OTHER PROVISIONS WITH RESPECT TO THE TRUSTEES
Section 9.1 Certain Notices
Within ten Business Days after the receipt of notice of the Sponsor's
exercise of its right to defer the payment of interest on the Subordinated Debt
Securities pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 11.8, notice of such exercise
to the Securityholders and the Regular Trustees, unless such exercise shall have
been revoked.
Section 9.2 May Hold Securities
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 9.5 and 9.10 and except as provided in the definition
of the term "Outstanding" in Article I, may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such other agent
Section 9.3 Compensation; Indemnity; Fees
The Sponsor agrees:
(a) to pay to the Trustees from time to time such reasonable compensation
as shall be agreed to in writing between the Sponsor and each Trustee for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this
Declaration (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 or willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any Trustee
and (iv) any employee or agent of Trust or its Affiliates, (referred to herein
as an "Indemnified Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination of the
Trust or 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
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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 negligence or
willful misconduct with respect to such acts or omissions.
The provisions of this Section 9.3 shall survive the termination of this
Declaration or the resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a result
of any amount due pursuant to this Section 9.3.
The Sponsor and any Trustee (subject to Section 9.5) 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 Securityholders 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. Neither the
Sponsor, nor any 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 the
Sponsor or any 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 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 depository 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.
Section 9.4 Corporate Property Trustee Required; Eligibility of Trustees
(a) There shall at all times be a Property Trustee hereunder. The Property
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, 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 Property Trustee
with respect to the Securities 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.
(b) There shall at all times be one or more Regular Trustees hereunder.
Each Regular Trustee shall be a natural person at least 21 years of age who is
an officer of the Sponsor.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
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Section 9.5 Conflicting Interests
If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property 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 Trust
Agreement. The Indenture and the Guarantee are hereby excluded for purposes of
Section 310(b)(1) of the Trust Indenture Act.
Section 9.6 Co-Trustees and Separate Trustee
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Sponsor and the Regular Trustees, by agreed action
of the majority of such Trustees, shall have power to appoint, and upon the
written request of the Regular Trustees, the Sponsor shall for such purpose join
with the Regular Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Sponsor does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Indenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment. Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is at least 21
years of age and a resident of the United States or (ii) a legal entity with its
principal place of business in the United States that shall act through one or
more persons authorized to bind such entity.
Should any written instrument from the Sponsor be required by any co-
trustee or separate trustee so appointed for more fully confirming to such co-
trustee or separate trustee such property, title, right, or power, any and all
such instruments shall, on request, be executed, acknowledged and delivered by
the Sponsor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The Securities shall be executed and delivered and all rights, powers,
duties, and obligations hereunder in respect of the custody of securities, cash
and other personal property held by, or required to be deposited or pledged
with, the Trustees specified hereunder shall be exercised solely by such
Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such
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co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Sponsor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case an Indenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Sponsor. Upon
the written request of the Property Trustee, the Sponsor shall join with the
Property Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to effectuate such resignation or removal. A
successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a co-
trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
Section 9.7 Resignation and Removal; Appointment of Successor
No resignation or removal of any Trustee (the "Relevant 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 9.8.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the other Trustees and,
in the case of resignation by the Property Trustee, written notice to the
Securityholders.
Unless an Indenture Event of Default shall have occurred and be continuing,
any Trustee may be removed at any time by Act of the Common Securityholder. If
an Indenture Event of Default shall have occurred and be continuing, the
Property Trustee or the Delaware Trustee, or both of them, may be removed at
such time by Act of the Holders of a Majority in Liquidation Amount of the
Outstanding Preferred Securities, delivered to the Relevant Trustee (in its
individual capacity and on behalf of the Trust). A Regular Trustee may be
removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of acting as
Trustee, or if a vacancy shall occur in the office of any Trustee for any cause,
at a time when no Indenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the
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Common Securityholder delivered to the retiring Trustee, shall promptly appoint
a successor Trustee or Trustees, which successor Trustee shall be domiciled
outside of the State of California, and the retiring Trustee shall comply with
the applicable requirements of Section 9.8. If the Property Trustee or the
Delaware Trustee shall resign, be removed or become incapable of continuing to
act as the Property Trustee or the Delaware Trustee, as the case may be, at a
time when an Indenture Event of Default shall have occurred and be continuing,
the Preferred Securityholders, by Act of the Holders of a Majority in aggregate
Liquidation Amount of the Preferred Securities then Outstanding delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and such successor Trustee shall comply with the applicable
requirements of Section 9.8. If a Regular Trustee shall resign, be removed or
become incapable of acting as Regular Trustee, at a time when an Indenture Event
of Default shall have occurred and be continuing, the Common Securityholder by
Act of the Common Securityholder delivered to the Regular Trustee shall promptly
appoint a successor Regular Trustee and such successor Regular Trustee shall
comply with the applicable requirements of Section 9.8. If no successor Relevant
Trustee shall have been so appointed by the Common Securityholder or the
Preferred Securityholders and accepted appointment in the manner required by
Section 9.8, any Securityholder who has been a Securityholder of Securities 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
Relevant Trustee.
If the instrument of acceptance by the successor Trustee required by
Section 9.8 shall not have been delivered to the Relevant Trustee within 30 days
after the giving of any notice of resignation or removal pursuant to this
Section 9.7, the Relevant Trustee resigning or being removed, as the case may
be, may petition, at the expense of the Sponsor, any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall, at the expense of the Sponsor, give notice of
each resignation and each removal of the Property Trustee and the Delaware
Trustee and each appointment of a successor Property Trustee and Delaware
Trustee to all Securityholders in the manner provided in Section 11.8 and shall
give notice to the Sponsor. Each notice shall include the name of the successor
Property Trustee and Delaware Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Declaration,
in the event any Regular Trustee or a Delaware Trustee who is a natural person
dies or becomes, in the opinion of the Sponsor, incompetent or incapacitated,
the vacancy created by such death, incompetence or incapacity may be filled by
(a) the unanimous act of the remaining Regular Trustees if there are at least
two of them or (b) otherwise by the Sponsor (with the successor in each case
being a Person who satisfies the eligibility requirement for Regular Trustee or
Delaware Trustee, as the case may be, set forth in Section 9.4).
Section 9.8 Acceptance of Appointment by Successor
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee (if requested by the Sponsor) and each successor
Relevant Trustee with respect
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to the Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Securities and the Trust and (b) shall add to or change any of the provisions of
this Declaration as shall be necessary to provide for or facilitate the
administration of the Trust by more than one Relevant Trustee, it being
understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust and/or the
retiring Relevant Trustee (upon reasonable provision for such retiring Relevant
Trustee's expenses) shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Relevant Trustee all such
rights, powers and trusts referred to in the first or second preceding
paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 9.9 Merger, Conversion Consolidation or Succession to Business
Any corporation into which the Property Trustee or the Delaware 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 such Trustee
shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Trustee, shall be the successor of such Trustee
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.
Section 9.10 Preferential Collection of Claims Against Sponsor or Trust
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or
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otherwise:
(a) to file and prove a claim for the whole amount of any Distributions
owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) 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 Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or compensation affecting the
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 9.11 Number of Trustees
(a) The number of Trustees shall initially be five, provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Regular Trustees. The Property Trustee and the Delaware
Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and, if such Trustee
is a Regular Trustee, the number of Regular Trustees is not reduced pursuant to
Section 9.11(a), or if the number of Trustees is increased pursuant to Section
9.11(a), a vacancy shall occur. The vacancy shall be filled with a Trustee
appointed in accordance with Section 9.7.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul,
dissolve or terminate 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 or Regular Trustees in accordance with Section 9.7, the Regular
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), 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 9.12 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
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executing any documents contemplated in Section 3.5; and
(b) The Regular Trustees shall have power to delegate from time to time to
such of their number or to the Sponsor 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 this Declaration, as set forth herein.
Section 9.13 Delaware Trustee
It is expressly understood and agreed by the parties hereto that, in
fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust,
(i) any agreements or instruments executed and delivered by The Bank of New York
(Delaware) are executed and delivered not in its individual capacity but solely
as Delaware Trustee under this Declaration in exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made by The Bank of New York (Delaware) on
the part of the Trust is made and intended not as representations, warranties,
covenants, undertakings and agreements by The Bank of New York (Delaware) in its
individual capacity but is made and intended for the purpose of binding only the
Trust, and (iii) under no circumstances shall The Bank of New York (Delaware) in
its individual capacity be personally liable for the payment of any indebtedness
or expenses of the Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Trust
under this Declaration, except if such breach or failure is due to any
negligence or willful misconduct of the Delaware Trustee.
ARTICLE X.
TERMINATION, LIQUIDATION AND MERGER
Section 10.1 Termination Upon Expiration Date
Unless earlier dissolved, the Trust shall automatically dissolve on
February 23, 2030 (the "Expiration Date"), and the Trust Property shall be
distributed in accordance with Section 10.4.
Section 10.2 Early Termination
The first to occur of any of the following events is an "Early Termination
Event," upon the occurrence of which the Trust shall be dissolved:
(a) a Bankruptcy Event in respect of the Sponsor;
(b) the filing of a certificate of dissolution or its equivalent with
respect to the Sponsor;
(c) the date that is 90 days after the revocation of the articles of
incorporation of the Sponsor (but only if the articles of incorporation are not
reinstated during such 90-day period);
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<PAGE>
(d) the written direction to the Property Trustee from the Sponsor at any
time to dissolve the Trust and distribute Subordinated Debt Securities to
Securityholders in exchange for the Securities (which direction is optional and
wholly within the discretion of the Sponsor);
(e) the redemption of all of the Securities in connection with the
redemption of all the Subordinated Debt Securities; and
(f) the entry of an order for dissolution of the Trust or the Sponsor by a
court of competent jurisdiction.
Section 10.3 Termination
The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 10.4, or upon the
redemption of all of the Securities pursuant to Section 5.2, of all amounts
required to be distributed hereunder upon the final payment of the Securities;
(b) the payment of any expenses owed by the Trust; and (c) the discharge of all
administrative duties of the Regular Trustees, including the performance of any
tax reporting obligations with respect to the Trust or the Securityholders.
Section 10.4 Liquidation
(a) If an Early Termination Event specified in clause (a), (b), (c), (d)
or (f) of Section 10.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Subordinated Debt Securities, subject to Section 10.4(d). Notice of liquidation
shall be given by the Property Trustee at the expense of the Sponsor by first-
class mail, postage prepaid mailed not later than 30 nor more than 60 days prior
to the Liquidation Date to the Clearing Agent and to each Securityholder at such
Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Securities
will no longer be deemed to be Outstanding and any Certificates not
surrendered for exchange will be deemed to represent a Like Amount of
Subordinated Debt Securities; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Certificates for Subordinated Debt Securities, or if
Section 10.4(d) applies, receive a Liquidation Distribution.
(b) Except where Section 10.2(e) or (f) or 10.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Subordinated Debt
Securities to Securityholders, the Property Trustee shall establish a record
date for such distribution (which shall be (i) one
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<PAGE>
Business Day prior to the Liquidation Date or (ii) in the event that the
Preferred Securities are not in book-entry form, the date 15 days prior to the
Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Subordinated Debt
Securities in exchange for the Outstanding Certificates.
(c) Except where Section 10.2(e) or (f) or 10.4(d) applies, after the
Liquidation Date, (i) the Securities will no longer be deemed to be Outstanding,
(ii) certificates representing a Like Amount of Subordinated Debt Securities
will be issued to holders of Certificates, upon surrender of such certificates
to the Property Trustee or its agent for exchange, (iii) the Sponsor shall use
commercially reasonable efforts to have the Subordinated Debt Securities listed
on the New York Stock Exchange or on such other exchange, interdealer quotation
system or self-regulatory organization as the Preferred Securities are then
listed, (iv) any Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Subordinated Debt Securities, accruing interest at
the rate provided for in the Subordinated Debt Securities from the last
Distribution Date on which a Distribution was made on such Certificates until
such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of
Certificates with respect to such Subordinated Debt Securities) and (v) all
rights of Securityholders holding Securities will cease, except the right of
such Securityholders to receive Subordinated Debt Securities upon surrender of
Certificates.
(d) In the event that, notwithstanding the other provisions of this
Section 10.4, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Subordinated Debt
Securities in the manner provided herein is determined by the Property Trustee
not to be practical, the Trust Property shall be liquidated, and the Trust shall
be wound-up by the Property Trustee in such manner as the Property Trustee
determines. In such event, Securityholders will be entitled to receive out of
the assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such winding up, 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, subject
to the next succeeding sentence, the amounts payable by the Trust on the
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts).
The Holder of the Common Securities will be entitled to receive Liquidation
Distributions upon any such winding-up pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if an Event of Default has
occurred and is continuing, the Preferred Securities shall have a priority over
the Common Securities.
Section 10.5 Consolidation, Merger or Amalgamation of the Trust
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 (each such event a "Merger Event"),
except pursuant to this Section 10.5 or Section 10.4. The Trust may, with the
consent of a majority of the Regular Trustees and without the
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<PAGE>
consent of the Holders of the Securities, consolidated, amalgamate, merge with
or into, convert into, or be replaced by another trust; provided, that:
(i) such successor trust entity either (x) expressly assumes all of
the obligations of the Trust with respect to the Preferred Securities and
Common Securities or (y) substitutes for the Preferred Securities and the
Common Securities other securities having substantially the same terms as
the Preferred Securities and the Common Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Preferred Securities and Common Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Subordinated Debt Securities;
(iii) the Preferred Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on the same
national securities exchange or other organization on which the Preferred
Securities are then listed, if any;
(iv) the Merger Event does not cause the Preferred Securities or
Successor Securities to be downgraded by any national rating agency;
(v) the Merger Event does not adversely affect the rights,
preferences and privileges of the Holders of the Preferred Securities and
Common Securities or Successor Securities in any material respect (other
than with respect to any dilution of the Holders' interest in the new
entity);
(vi) such successor entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such Merger Event, the Sponsor has received an Opinion
of Counsel to the effect that (x) such Merger Event does not adversely
affect the rights, preferences and privileges of the Holders of the
Preferred Securities or any Successor Securities in any material respect
(other than with respect to any dilution of the Holders' interest in the
new entity), and (y) following such Merger Event, neither the Trust nor
such successor entity will be required to register as an Investment Company
under the Investment Company Act; and
(viii) the Sponsor guarantees the obligations of such successor
entity under the Successor Securities at least to the extent provided by
the Guarantee and the Common Securities Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent
of Holders of all 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 transaction
would cause the Trust or the successor entity to be classified as other than a
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grantor trust for United States Federal income tax purposes.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.1 Limitation of Rights of Securityholders
Except as otherwise provided in Section 10.2, the death, dissolution,
termination, bankruptcy or incapacity of any Person having an interest,
beneficial or otherwise, in Securities shall not operate to terminate this
Declaration, nor dissolve, terminate or annul the Trust, nor entitle the legal
successors, representatives or heirs of such Person or any Securityholder for
such Person, to claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements contemplated hereby,
nor otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
Section 11.2 Amendment
(a) This Declaration may be amended from time to time by the Property
Trustee, the Regular Trustees and the Sponsor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, 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, or (ii) to modify, eliminate or add to any provisions of this
Declaration to such extent as shall be necessary to ensure that the Trust will
be classified for United States Federal income tax purposes as a grantor trust
at all times that any Securities are outstanding or to ensure that the Trust
will not be required to register as an Investment Company under the Investment
Company Act; provided, however, that in the case of clause (i), such action
shall not adversely affect in any material respect the interests of any
Preferred Securityholder, and any such amendments of this Declaration shall
become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 11.2(c) hereof, any provision of this
Declaration may be amended by the Trustees and the Sponsor with (i) the consent
of Preferred Securityholders representing a majority (based upon aggregate
Liquidation Amount) of the Preferred Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the 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
of an Investment Company under the Investment Company Act.
(c) In addition to and notwithstanding any other provision in this
Declaration, without the consent of each affected Securityholder, this
Declaration may not be amended to (i) change the amount or timing of any
Distribution on the Securities or otherwise adversely affect the amount of any
Distribution required to be made in respect of the Securities as of a specified
date or (ii) restrict the right of a Securityholder to institute suit for the
enforcement of any such
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payment on or after such date; notwithstanding any other provision herein,
without the unanimous consent of the Securityholders, this paragraph (c) of this
Section 11.2 may not be amended.
(d) Notwithstanding any other provisions of this Declaration, no Trustee
shall enter into or consent to any amendment to this Declaration which would
cause the Trust to fail or cease to qualify for the exemption from status of an
Investment Company under the Investment Company Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Declaration to the contrary, this
Declaration may not be amended in a manner which imposes any additional
obligation on the Sponsor, the Property Trustee or the Delaware Trustee without
the consent of the Sponsor, the Property Trustee or the Delaware Trustee, as the
case may be.
(f) In the event that any amendment to this Declaration is made, the
Regular Trustees shall promptly provide to the Sponsor a copy of such amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration which affects its own
rights, duties or immunities under this Declaration. The Property Trustee shall
be entitled to receive an Opinion of Counsel and an Officer's Certificate
stating that any amendment to this Declaration is in compliance with this
Declaration and that all conditions precedent, if any, to such amendment have
been complied with.
Section 11.3 Separability
In case any provision in this Declaration or in the Certificates 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 11.4 Governing law
THIS DECLARATION AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS DECLARATION AND
THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF.
Section 11.5 Payments Due on Non-Business Day
If the date fixed for any payment on any Security shall be a day that is
not a Business Day, then such payment need not be made on such date but may be
made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 5.1(a) and 5.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall
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accrue thereon for the period after such date.
Section 11.6 Successors
This Declaration shall be binding upon and shall inure to the benefit of
any successor to the Sponsor, the Trust or the Relevant Trustee, including any
successor by operation of law. Except in connection with a consolidation,
merger, sale or other transaction involving the Sponsor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Sponsor's obligations hereunder, the Sponsor shall not
assign its obligations hereunder.
Section 11.7 Headings
The Article and Section headings are for convenience only and shall not
affect the construction of this Declaration.
Section 11.8 Reports, Notices and Demands
Any report, notice, demand or other communication which by any provision of
this Declaration is required or permitted to be given or served to or upon any
Securityholder or the Sponsor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Sponsor, to Sempra Energy, 101
Ash Street, San Diego, California 92101, Attention: Treasurer, facsimile number
(619) 696-4577. Any notice to Preferred Securityholders shall also be given to
such owners as have, within two years preceding the giving of such notice, filed
their names and addresses with the Property Trustee for that purpose. Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Declaration is required or permitted to be given or served to or upon the Trust,
the Property Trustee, the Delaware Trustee or the Regular Trustees shall be
given in writing addressed (until another address is published by the Trust) as
follows: (a) with respect to the Property Trustee to The Bank of New York, at
its Corporate Trust Office, Attention: Corporate Trust Administration; (b) with
respect to the Delaware Trustee, to The Bank of New York (Delaware), White Clay
Center, Route 273, Newark, Delaware 19711, Attention: Corporate Trust
Administration; (c) with respect to the Regular Trustees, to them c/o Sempra
Energy, 101 Ash Street, San Diego, California 92101, marked "Attention Regular
Trustees of Sempra Energy Capital Trust I"; and (d) with respect to the Trust,
to its principal office specified in Section 3.2, with a copy to the Property
Trustee. Such notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given or made only
upon actual receipt of the writing by the Trust or the Property Trustee.
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Section 11.9 Agreement Not to Petition
Each of the Trustees and the Sponsor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article X, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Sponsor takes action in violation of this Section 11.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Sponsor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Sponsor against the Trust or
the commencement of such action and raise the defense that the Sponsor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 11.9 shall survive the
termination of this Declaration.
Section 11.10 Acceptance of Terms of Declaration; Guarantee and Indenture
THE RECEIPT AND ACCEPTANCE OF A SECURITY OR ANY INTEREST THEREIN BY OR ON
BEHALF OF A SECURITYHOLDER OR ANY OWNER, WITHOUT ANY SIGNATURE OR FURTHER
MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE
SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH SECURITY OF
ALL THE TERMS AND PROVISIONS OF THIS DECLARATION AND AGREEMENT TO THE
SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE INDENTURE, AND
SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS
THAT THE TERMS AND PROVISIONS OF THIS DECLARATION SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
THE SPONSOR, THE TRUST AND EACH HOLDER AND OWNER OF A PREFERRED SECURITY (BY ITS
ACCEPTANCE OF AN INTEREST THEREIN) SHALL BE DEEMED TO HAVE AGREED TO TREAT THE
SUBORDINATED DEBT SECURITIES AS INDEBTEDNESS FOR ALL U.S. TAX PURPOSES AND THE
PREFERRED SECURITY AS EVIDENCE OF AN INDIRECT BENEFICIAL OWNERSHIP INTEREST IN
THE SUBORDINATED DEBT SECURITIES.
(Signature Pages Follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration to be
duly executed, as of the day and year first written above.
SEMPRA ENERGY
By: /s/ Charles A. McMonagle
-----------------------------------
Charles A. McMonagle
Vice President and Treasurer
THE BANK OF NEW YORK, as Property
Trustee
By: /s/ Michele L. Russo
-----------------------------------
Name: Michele L. Russo
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE), as
Delaware Trustee
By: /s/ Walter N. Gitlin
-----------------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
Declaration of Trust 1 of 2
<PAGE>
REGULAR TRUSTEES
----------------
By: /s/ Neal E. Schmale
-----------------------------------
Neal E. Schmale
Regular Trustee
By: /s/ Frank H. Ault
-----------------------------------
Frank H. Ault
Regular Trustee
By: /s/ Charles A. McMonagle
-----------------------------------
Charles A. McMonagle
Regular Trustee
Declaration of Trust 2 of 2
2
<PAGE>
EXHIBIT 2.4
SEMPRA ENERGY
TO
The Bank of New York
Trustee
____________________________________________
Subordinated Indenture
Dated as of February 23, 2000
____________________________________________
<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 this 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.................................................... 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.................................................................................... 13
Section 201. Forms Generally............................................................................. 13
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............................................. 20
ARTICLE III. THE SECURITIES................................................................................... 20
Section 301. Amount Unlimited; Issuable in Series........................................................ 20
Section 302. Denominations............................................................................... 23
Section 303. Execution, Authentication, Delivery and Dating.............................................. 24
Section 304. Temporary Securities........................................................................ 25
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....................................................................... 31
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.............................. 38
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........................................................... 40
Section 511. Delay or Omission Not Waiver............................................................. 40
Section 512. Control By Holders....................................................................... 40
Section 513. Waiver of Past Defaults.................................................................. 41
Section 514. Undertaking for Costs.................................................................... 41
Section 515. Waiver of Stay or Extension Laws......................................................... 41
ARTICLE VI. THE TRUSTEE....................................................................................... 42
Section 601. Certain Duties and Responsibilities...................................................... 42
Section 602. Notice of Defaults....................................................................... 42
Section 603. Certain Rights of Trustee................................................................ 42
Section 604. Not Responsible for Recitals or Issuance of Securities................................... 44
Section 605. May Hold Securities...................................................................... 44
Section 606. Money Held in Trust...................................................................... 44
Section 607. Compensation and Reimbursement........................................................... 44
Section 608. Conflicting Interests.................................................................... 45
Section 609. Corporate Trustee Required; Eligibility.................................................. 45
Section 610. Resignation and Removal; Appointment of Successor........................................ 46
Section 611. Acceptance of Appointment by Successor................................................... 47
Section 612. Merger, Conversion, Consolidation or Succession to Business.............................. 48
Section 613. Preferential Collection of Claims Against Corporation.................................... 49
Section 614. Appointment of Authenticating Agent...................................................... 49
Section 615. Trustee's Application for Instructions from the Corporation.............................. 50
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ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION............................................ 51
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders............................ 51
Section 702. Preservation of Information; Communications to Holders................................... 51
Section 703. Reports by Trustee....................................................................... 51
Section 704. Reports by Corporation................................................................... 52
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER................................................... 53
Section 801. Corporation May Consolidate, Etc., on Certain Terms...................................... 53
Section 802. Successor Substituted.................................................................... 54
ARTICLE IX. SUPPLEMENTAL INDENTURES........................................................................... 54
Section 901. Supplemental Indentures Without Consent of Holders....................................... 54
Section 902. Supplemental Indentures With Consent of Holders.......................................... 55
Section 903. Execution of Supplemental Indentures..................................................... 56
Section 904. Effect of Supplemental Indentures........................................................ 57
Section 905. Conformity with Trust Indenture Act...................................................... 57
Section 906. Reference in Securities to Supplemental Indentures....................................... 57
Section 907. Subordination Unimpaired................................................................. 57
ARTICLE X. COVENANTS.......................................................................................... 57
Section 1001. Payment of Principal, Premium and Interest............................................... 57
Section 1002. Maintenance of Office or Agency.......................................................... 58
Section 1003. Money for Securities Payments to Be Held in Trust........................................ 58
Section 1004. Corporate Existence...................................................................... 59
Section 1005. Statement by Officers as to Default...................................................... 59
Section 1006. Waiver of Certain Covenants.............................................................. 60
ARTICLE XI. REDEMPTION OF SECURITIES.......................................................................... 60
Section 1101. Applicability of Article................................................................. 60
Section 1102. Election to Redeem; Notice to Trustee.................................................... 60
Section 1103. Selection by Trustee of Securities to Be Redeemed........................................ 61
Section 1104. Notice of Redemption..................................................................... 61
Section 1105. Securities Payable on Redemption Date.................................................... 62
Section 1106. Securities Redeemed in Part.............................................................. 63
ARTICLE XII. SINKING FUNDS.................................................................................... 63
Section 1201. Applicability of Article................................................................. 63
Section 1202. Satisfaction of Sinking Fund Payments with Securities.................................... 64
Section 1203. Redemption of Securities for Sinking Fund................................................ 64
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE.............................................................. 64
Section 1301. Applicability of Article................................................................. 64
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Section 1302. Defeasance and Discharge................................................................. 65
Section 1303. Covenant Defeasance...................................................................... 65
Section 1304. Conditions to Defeasance or Covenant Defeasance.......................................... 66
Section 1305. Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions. 68
Section 1306. Reinstatement............................................................................ 68
Section 1307. Effect on Subordination Provisions....................................................... 69
ARTICLE XIV. SUBORDINATION.................................................................................... 69
Section 1401. Securities Subordinated to Senior Indebtedness........................................... 69
Section 1402. Disputes with Holders of Certain Senior Indebtedness..................................... 71
Section 1403. Subrogation.............................................................................. 72
Section 1404. Obligation of Corporation Unconditional.................................................. 72
Section 1405. Payments on Securities Permitted......................................................... 73
Section 1406. Effectuation of Subordination by Trustee................................................. 73
Section 1407. Knowledge of Trustee..................................................................... 73
Section 1408. Trustee May Hold Senior Indebtedness..................................................... 74
Section 1409. Rights of Holders of Senior Indebtedness Not Impaired.................................... 74
Section 1410. Trust Moneys Not Subordinated............................................................ 74
Section 1411. Article Applicable to Paying Agents...................................................... 75
Section 1412. Trustee; Compensation Not Prejudiced..................................................... 75
ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS................................... 75
Section 1501. Indenture and Securities Solely Corporate Obligations.................................... 75
Testimonium................................................................................................... 65
Signatures.................................................................................................... 65
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INDENTURE, dated as of February 23, 2000, 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 or (ii) a day on which banking
institutions in that Place of Payment are authorized or obligated by law or
executive order to remain closed.
"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 Order" or "Company Request" means a written order or request
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 either the Chairman
of the Board, the 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 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 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
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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 any 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 any 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, the secretary, any assistant
secretary, any assistant treasurer, any trust officer 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.
"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(1).
"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 established pursuant to Section 301.
"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
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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.
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
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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 action has
been taken by or at the request of the Corporation in reliance on an error or
omission in the original document which has been corrected as aforesaid, 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
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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 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.
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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.
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,
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(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: 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 made, given, furnished or filed in writing, which may be made
via facsimile, or 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 by
such Holders 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.
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.
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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, in one or more indentures supplemental hereto or in an
Officers' Certificate pursuant to Section 301 hereof, 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 by or
pursuant to a Board
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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 or by the Depositary.]
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 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 (each an "Interest Payment Date"), commencing
_______________, and at Maturity at the rate of ____% per annum, until the
principal hereof is paid or made available for payment [if applicable, insert -
, provided that any principal hereof or premium, if any, or interest hereon
which is not paid when due 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]. Interest on this
Security shall be calculated on the basis of a 360-day year consisting of twelve
30-day months. 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 on any Interest
Payment Date will forthwith cease to be payable to the Holder on such Regular
Record Date by virtue of having been such Holder and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the
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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 the Borough of
Manhattan, The City of New York, 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 fifteen (15) days prior to the date for payment by the Person
entitled thereto]. [In the case of a Global Security registered in the name of
the Depository Trust Company or its nominee, insert--Notwithstanding the
foregoing, so long as the Holder of this Security is the Depositary or its
nominee, payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made by wire transfer of
immediately available funds.]
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.
14
<PAGE>
Dated: 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 (subject to
exceptions provided in the Indenture) in aggregate principal amount to
$__________].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' prior written
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 Regular Record Dates referred to on the face hereof, all as provided in
the Indenture.]
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<PAGE>
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' nor more than 60 days' prior written
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
Operation of the Than 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
Regular 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
16
<PAGE>
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.]
[If the Security is not subject to redemption, insert - The Securities are
not subject to redemption prior to the Stated Maturity of the principal
thereof.]
[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 and accrued and unpaid interest on 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 each 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 each series at the time Outstanding affected thereby. The Indenture contains
provisions permitting the Holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding with respect to
which a default under the Indenture shall have occurred and be continuing, on
behalf of the Holders of all Securities of such series, to waive, with certain
exceptions, such past default with respect to such series and its consequences.
The Indenture also permits the Holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding, on behalf of the
Holders of all Securities of such
17
<PAGE>
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 25% 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, such Holder or Holders shall have offered the Trustee
reasonable indemnity, and the Trustee, for 60 days after its receipt of such
notice, 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 the Trustee 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 [premium, if any,] 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.
18
<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.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to conflict of law principles
thereof.
All terms used in this Security which are defined in the Indenture and not
defined herein 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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<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 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
21
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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, a series of Securities may from
time to time be "re-opened" and the aggregate principal amount of any such
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 (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 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 signatory, 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
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<PAGE>
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 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 assessed against the Holder or 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, (C) the Corporation, in its sole
discretion,
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<PAGE>
executes and delivers to the Trustee a Company Order to the effect that
such Global Security, together with all other Global Securities of the same
series, shall be exchangeable as described below, (D) an Event of Default
has occurred and is continuing with respect to the Securities of such
series, or (E) 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. If any of the events described in clauses (A)
through (E) of the preceding sentence occur, the beneficial owners of
interests in the relevant Global Securities will be entitled to exchange
those interests for definitive Securities and, without unnecessary delay
but in any event not later than the earliest date on which those interests
may be so exchanged, the Corporation will deliver to the Trustee definitive
Securities in such form and denominations as are required by or pursuant to
this Indenture, and of the same series, containing identical terms and in
an aggregate principal amount equal to the principal amount of such Global
Securities, such Securities to be duly executed by the Corporation. On or
after the earliest date on which such beneficial interests may be so
exchanged, such Global Securities shall be surrendered from time to time by
the Depositary as shall be specified in the Company Order with respect
thereto (which the Corporation agrees to deliver), and in accordance with
any instructions given to the Trustee and the Depositary (which
instructions shall be in writing but need not be contained in or
accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto
to the Trustee, as the Corporation's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described
above without charge. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered Global Security,
a like aggregate principal amount of definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
Global Security to be exchanged. Promptly following any such exchange in
part, such Global Security shall be returned by the Trustee to such
Depositary or its custodian. If a definitive Security is issued in exchange
for any portion of a Global Security after the close of business at the
place where such exchange occurs on or after (i) any Regular Record Date
for such Security and before the opening of business at that Place of
Payment on the next Interest Payment Date, or (ii) any Special Record Date
for such Security and before the opening of business at such Place of
Payment on the related proposed date for the payment of Defaulted Interest,
as the case may be, interest shall not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of such
definitive Security, but shall be payable on such Interest Date or proposed
date for payment, as the case may be, only to the Person to whom interest
in respect of such portion of such Global Security shall be payable in
accordance with the provisions of this Indenture.
(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.
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(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 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
reasonable 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 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
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<PAGE>
for such interest, such payment to be made at the office or agency maintained
for such purpose pursuant to Section 1002; provided, however, that, at the
option of the Corporation, interest on any series of Securities that bear
interest may be paid (i) by check mailed to the address of the Persons entitled
thereto as such addresses shall appear on the Security Register or (ii) 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 15 days
prior to the date for payment by the Persons entitled thereto. Any such
instructions given pursuant to clause (ii) shall remain in effect until revoked
by written notice to the Trustee at least 15 days prior to any payment date by
the Person entitled to such payment.
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 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
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<PAGE>
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.
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
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<PAGE>
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
with respect to any series of Securities specified in such Company Request
(except as to those surviving rights and obligations specified below), and the
Trustee, at the expense of the Corporation, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities of such series which have
been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities of such series
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 of such series 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 (B) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust
for the purpose money in an amount sufficient 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;
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(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 as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, 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 Corporation and the Trustee with respect to the Securities of
such series under Sections 304, 305, 306, 402, 1002, 1003 and 1306 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 (other
than 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 specifically deleted or modified in the Board Resolution 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 30 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
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(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; or
(4) default in the performance, or breach, of any covenant or
warranty of the Corporation in this Indenture (other than a covenant or
warranty 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 a series of Securities other
than that series) or the Securities of that series, and continuance of such
default or breach for a period of 60 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; 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 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 the Corporation
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 the
Corporation, or the filing by the Corporation of a petition or answer or
consent seeking reorganization or relief under any applicable federal or
state law, or the consent by the Corporation 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 the Corporation of an assignment for the benefit of creditors, or the
admission by the Corporation 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 of the Corporation; or
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(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) and accrued and unpaid interest, if any, thereon
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) and accrued and unpaid interest 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
which has become due otherwise than by such declaration of
acceleration,
(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, to the extent permitted by
law, any interest thereon at the rate or rates prescribed therefor
in such Securities or, if no such rate or rates are so provided,
at the rate or respective rates, as the case may be, of interest
borne by such Securities.
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest which has become due otherwise than
by such declaration of acceleration at the rate or rates
prescribed therefor in such Securities or, if no such rate or
rates are so provided, at the rate or respective rates, as the
case may be, of interest borne by 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 any other amounts due
the Trustee under Section 607;
and
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(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of or accrued and
unpaid interest on 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 30 days,
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the deposit of any mandatory sinking fund
payment applicable to any Security when due,
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, or, if no such
rate or rates are so provided, at the rate or respective rates, as the case
may be, of interest borne by 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, and any
other amounts due the Trustee under Section 607.
If the Corporation fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon demand of the Trustee, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon such Securities endorsed
thereon and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Corporation or any other obligor upon
such Securities, wherever situated.
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
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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
(irrespective of whether the principal of such Securities shall then be due and
payable as therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Corporation for the payment of overdue principal, premium, if any, or interest)
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 case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization adjustment, composition or other similar
judicial proceeding relative to the Corporation, the Trustee (irrespective of
whether the principal of such Securities shall then be due and payable as
therein expressed or by declaration of acceleration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Corporation for the payment of overdue principal, premium, if any, or interest)
shall be authorized to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the Securities
of such series and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of such Securities allowed
in such judicial proceeding, 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
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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 aggregate
amounts due and payable on such Securities for principal and any premium
and interest; 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;
(2) the Holders of not less than 25% 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;
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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 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, to the
extent permitted by law, 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, to the extent permitted by law, 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.
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<PAGE>
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) subject to Section 601, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction,
and
(3) such direction is not unduly prejudicial to the rights of
other Holders of Securities of that series not joining in that action.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series with respect to which any default under
this Indenture shall have occurred and be continuing may, on behalf of the
Holders of all Securities of such series, waive such past default under this
Indenture with respect to such Securities 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 such 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.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, 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 or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
disbursements, against any party litigant in such suit having due regard to the
merits and good faith of the claims or defenses made by such party litigant, but
the provisions of this Section 514 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate
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<PAGE>
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on any Security on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
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 or any usury law
or any other law wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Corporation from paying all or any portion of the
principal of or premium, if any, or interest on any Securities as contemplated
herein or therein or 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.
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
the 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 the Trustee's
negligence, negligent failure to act 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 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.
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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 (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;
(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;
(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 and in accordance with such advice. Such counsel may be counsel to
the Corporation or any of its Affiliates, and may include any of its
employees;
(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
with respect to the Securities of any series, the Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Indenture with respect to the Securities of such series, whether at the
request or direction of any of the Holders thereof or pursuant to any other
provision in this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably 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 may make such further inquiry or investigation
into such facts or matters as it considers reasonably necessary in order to
carry out its obligations in the administration of this Indenture and if
the Trustee shall determine to make such further inquiry or investigation,
it shall be entitled, at reasonable
41
<PAGE>
times previously notified to the Corporation, to examine the relevant
books, records and premises of the Corporation, personally or by agent or
attorney;
(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; and
(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.
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.
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);
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(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), except any such expense,
disbursement or advance as may be attributable to its negligence or willful
misconduct; 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 or willful misconduct 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 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
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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.
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 the
Corporation.
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 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 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
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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.
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 any notice of resignation or removal pursuant to this Section 610, the
Trustee resigning or being removed, as the case may be, 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 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 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 in 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
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
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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 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).
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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 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.
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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 or the delisting thereof.
Section 704. Reports by Corporation.
----------------------
The Corporation, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after it is required to
file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which it may be required to file with
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the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
or, if it is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the Trustee
and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
it with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by it pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
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 sale, transfer,
lease or other conveyance 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, that the Corporation shall not, in any transaction or series
of transactions, consolidate or merge with or into any Person or sell, transfer,
lease or otherwise convey the properties and assets of the Corporation as an
entirety or substantially as an entirety to any other Persons, unless:
(i) either (A) the Corporation shall be the continuing Person
(in the case of a merger) or (B) the successor Person formed by such
consolidation or into which the Corporation is merged or which
acquires by sale, transfer, lease or other conveyance the properties
and assets of the Corporation as an entirety or substantially as an
entirety, is a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture (or indentures,
if at such time there shall be more than one Trustee) supplemental
hereto, executed by such successor corporation, the Trustee and the
Corporation in form and substance satisfactory to the Trustee, the due
and punctual payment of the principal of and premium, if any, and
interest on all of the Outstanding Securities and the due and punctual
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performance and observance of every obligation in this Indenture and
the Outstanding Securities on the part of the Corporation to be
performed or observed;
(ii) immediately after giving effect to such transaction, no
Event of Default and no event which, after notice or lapse of time or
both, would become an Event of Default, has or shall have occurred and
be continuing; and
(iii) the Corporation shall deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, transfer, lease or other conveyance 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 sale, transfer, lease or other
conveyance 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 sale, transfer, lease or other conveyance 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, except in the
case of a lease, 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 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
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(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 change or eliminate any of the provisions of this Indenture in
respect of one or more series of Securities, provided that any such change
or elimination (A) shall neither (i) apply to any Security 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) add any new provision
to this Indenture, provided that any such addition does not apply to any
Security of any series created prior to the execution of such supplemental
indenture or (C) 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.
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 each series affected by such
supplemental indenture, 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 of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
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(1) change the Stated Maturity of the principal of, or premium, if
any, or any installment of principal of or any premium or premium, if any,
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 any place of payment where or 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 (3) 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), or
(4) modify any of the provisions of this Indenture relating to the
subordination of the Securities or the definition of Senior Indebtedness in
a manner adverse to Holders of Securities.
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 Sections 315(a) through 315(d) of the Trust Indenture Act) 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
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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 as then in effect.
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.
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
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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.
Unless otherwise provided in or pursuant to Section 301 of this Indenture,
the Corporation hereby designates as a Place of Payment for each series of
Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as its office or agency in
that Place of Payment for such purpose.
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
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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 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) or
901(2) 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
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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 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;
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(7) the CUSIP number of such Securities, if any, or any other numbers
used by the Depositary to identify such securities; and
(8) such other matters as the Corporation shall deem desirable or
appropriate.
Notice of redemption of Securities to be redeemed at the election of the
Corporation 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. Any such
notice of redemption shall be irrevocable.
On or prior to any Redemption Date, the Corporation shall deposit, with
respect to the Securities of any series called for redemption pursuant to this
Section 1104, with the Trustee or with a Paying Agent an amount of money in the
applicable currency sufficient to pay the Redemption Price of, and any accrued
interest on, all such Securities or portion thereof which are to be redeemed on
that date.
Section 1105. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, 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 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 Regular 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 or, if no rate is prescribed therefor in the Security, at the rate of
interest, if any, borne by such Security.
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.
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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.
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.
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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. Unless otherwise specified pursuant to Section 301, defeasance
under Section 1302 and covenant defeasance under Section 1303 may be effected
only with respect to all, and not less than all, the Securities of any series.
To the extent that the Corporation is permitted, pursuant to Section 301, to
defer interest payments, change the time for interest payments, or change the
Stated Maturity of the Securities of any series or any installment of principal
thereof, any such right shall terminate upon defeasance or covenant defeasance
of the Securities of that series as described below or upon satisfaction and
discharge with respect to the Securities of that series pursuant to Section 401.
Section 1302. Defeasance and Discharge.
------------------------
On and after the date the conditions set forth in Section 1304 are
satisfied, the Corporation may cause itself to be discharged from its
obligations with respect to any Securities or any series of Securities
(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 and Trustee's obligations with respect to such
Securities under Sections 304, 305, 306, 1002, 1003 and 1306 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 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, the Corporation may cause itself to be released from its obligations
under any covenants provided pursuant to Section 301(19) or 901(2), 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
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Sections 501(4) (with respect to any such covenants provided pursuant to Section
301(19), 901(2) 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 (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 covenants added for the benefit of the Securities of such series
pursuant to 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.
Following a Covenant Defeasance, payment of the Securities may not be
accelerated by reference to the covenant described in the description of
Covenant Defeasance above.
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 U.S. dollars 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 one day before
the due date of any payment due in respect of such Securities, money in an
amount, or (C) a combination thereof, in each case sufficient, without
consideration of any reinvestments of such principal and interest, 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, and any mandatory sinking fund payments or
analogous payments applicable to such Securities when such payments are due
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
timely 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)
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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 monies or Government Obligations or combination thereof
deposited pursuant to Clause (1) above are sufficient to pay the principal
of and premium, if any, and interest, if any, on such Securities provided
such 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
irrevocable instructions to redeem such Securities on such Redemption Date
and to provide notice of such redemption to Holders satisfactory to the
Trustee shall have been made.
(4) In the case of Defeasance pursuant to Section 1302, the
Corporation shall have delivered to the Trustee an opinion of independent
counsel stating that (x) the Corporation has received from, or there has
been published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in applicable federal income
tax law, in either case to the effect that, and based thereon such opinion
of independent counsel shall confirm that, the Holders of such Outstanding
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Defeasance had not occurred; or, in the
case of Covenant Defeasance pursuant to Section 1303, the Corporation shall
have delivered to the Trustee an opinion of independent counsel to the
effect that the Holders of such Outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred.
(5) 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.
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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 (other than 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 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.
Section 1306. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any moneys or
Government Obligations deposited pursuant to Section 401 or 1304 to pay any
principal of or premium, if any, or interest, if any, on the Securities of any
series by reason of any legal proceeding or any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Corporation's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no such
deposit had occurred, until such time as the Trustee or Paying Agent is
permitted to apply all such moneys and Government Obligations to pay the
principal of and premium, if any, and interest, if any, on the Securities of
such series as contemplated by Section 402 or 1305, as the case may be,
provided, however, that if the Corporation makes any payment of the principal of
or premium, if any, or interest, if any, on the Securities of such series
following the reinstatement of its obligations as aforesaid, the Corporation
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the funds held by the Trustee or Paying Agent, but 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 of that series shall have been paid in full.
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Section 1307. Effect on Subordination Provisions.
----------------------------------
Unless otherwise expressly provided pursuant to Section 301 with respect to
the Securities of any series, the provisions of Article XIV hereof are hereby
expressly made subject to the provisions for satisfaction and discharge set
forth in Section 401 hereof and the provisions for Defeasance and Covenant
Defeasance set forth in Article XIII hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of such satisfaction and discharge
pursuant to Section 401 or any such Defeasance or Covenant Defeasance pursuant
to Article XIII with respect to the Securities of such series, such Securities
shall thereupon cease to be so subordinated and shall no longer be subject to
the provisions of Article XIV and, without limitation to the foregoing, all
moneys, Government Obligations and other securities or property deposited with
the Trustee in trust in connection with such satisfaction and discharge,
Defeasance or Covenant Defeasance, as the case may be, and all proceeds
therefrom may be applied to pay the principal of, premium, if any, and interest,
if any, on, the Securities of such series as and when the same shall become due
and payable notwithstanding the provisions of Article XIV.
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
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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:
(1) 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 the Securities, including, without limitation, any payments
made pursuant to Article Eleven or Article Twelve;
(2) 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
(3) 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.
66
<PAGE>
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
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
67
<PAGE>
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 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
68
<PAGE>
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, 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.
69
<PAGE>
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 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.
70
<PAGE>
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.
* * * *
71
<PAGE>
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/ Charles A. McMonagle
-----------------------------------
Charles A. McMonagle
Vice President and Treasurer
Attest:
/s/ Gary Kyle
- ------------------------
The Bank of New York,
as Trustee
By: /s/ Michele L. Russo
-----------------------------------
Authorized Signatory
<PAGE>
EXHIBIT 2.8
GUARANTEE AGREEMENT
Between
SEMPRA ENERGY
(as Guarantor)
and
THE BANK OF NEW YORK
(as Trustee)
dated as of
February 23, 2000
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
----------------------------------- -------------------------
Section of Trust Indenture Section of
Act of 1939, as amended Guarantee Agreement
----------------------------------- -------------------------
<S> <C>
310(a)............................ 4.1(a)
310(b)............................ 4.1(c), 2.8
310(c)............................ Inapplicable
311(a)............................ 2.2(b)
311(b)............................ 2.2(b)
311(c)............................ Inapplicable
312(a)............................ 2.2(a)
312(b)............................ 2.2(b)
313............................... 2.3
314(a)............................ 2.4
314(b)............................ Inapplicable
314(c)............................ 2.5
314(d)............................ Inapplicable
314(e)............................ 1.1, 2.5, 3.2
314(f)............................ 2.1, 3.2
315(a)............................ 3.1 (d)
315(b)............................ 2.7
315(c)............................ 3.1
315(d)............................ 3.1(d)
316(a)............................ 1.1, 2.6, 5.4
316(b)............................ 5.3
316(c)............................ 8.2
317(a)............................ Inapplicable
317(b)............................ Inapplicable
318(a)............................ 2.1(b)
318(b)............................ 2.1
318(c)............................ 2.1(a)
</TABLE>
- --------------------------------------------------------------------------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
-i-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I. DEFINITIONS.................................................. 1
Section 1.1 Definitions.................................... 1
ARTICLE II. TRUST INDENTURE ACT.......................................... 4
Section 2.1 Trust Indenture Act; Application............... 4
Section 2.2 List of Holders; Preferential Claims........... 4
Section 2.3 Reports by the Guarantee Trustee............... 4
Section 2.4 Periodic Reports to the Guarantee Trustee...... 4
Section 2.5 Evidence of Compliance with Conditions
Precedent...................................... 4
Section 2.6 Events of Default; Waiver...................... 5
Section 2.7 Conflicting Interests.......................... 5
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE........... 5
Section 3.1 Powers and Duties of the Guarantee Trustee..... 5
Section 3.2 Certain Rights of Guarantee Trustee............ 6
Section 3.3 Compensation; Indemnity; Fees.................. 8
Section 3.4 Conflicting Interests.......................... 9
ARTICLE IV. GUARANTEE TRUSTEE............................................ 10
Section 4.1 Guarantee Trustee; Eligibility................. 10
Section 4.2 Appointment, Removal and Resignation of the
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........................... 12
Section 5.6 Subordination.................................. 12
Section 5.7 Independent Obligations........................ 12
ARTICLE VI. COVENANTS AND SUBORDINATION.................................. 13
ARTICLE VII. TERMINATION.................................................. 13
Section 7.1 Termination.................................... 13
ARTICLE VIII. MISCELLANEOUS................................................ 13
Section 8.1 Successors and Assigns......................... 13
Section 8.2 Amendments..................................... 14
</TABLE>
-ii-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION> <S> <C>
Section 8.3 Notices........................................ 14
Section 8.4 Benefit........................................ 15
Section 8.5 Interpretation................................. 15
Section 8.6 Governing Law.................................. 15
</TABLE>
-iii-
<PAGE>
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of February 23, 2000 (this "Guarantee
Agreement"), entered into between SEMPRA ENERGY, a California corporation having
its principal office at 101 Ash Street, San Diego, California 92101 (the
"Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "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, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust, dated as
of February 23, 2000 (the "Declaration"), among Sempra Energy, a California
corporation (the "Company"), as Sponsor, the Property Trustee named therein, the
Delaware Trustee named therein, the Regular Trustees named therein and the
several Holders as defined therein, the Issuer is issuing $200,000,000 aggregate
Liquidation Amount (as defined in the Declaration) of its 8.90% Cumulative
Quarterly Income Preferred Securities, Series A (Liquidation Amount $25 per
Preferred Security) (the "Preferred Securities"), representing undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in the Declaration;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Common
Securities (as defined in the Declaration), will be used to purchase the
Subordinated Debt Securities (as defined in the Declaration) of the Company
which will be deposited with The Bank of New York, as Property Trustee under the
Declaration, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, 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;
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 from time to time of the Preferred Securities.
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. As used in this Guarantee Agreement, the terms
-----------
set forth below shall, unless the context otherwise requires, have the following
meanings. Capitalized or otherwise defined terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Declaration as in
effect on the date hereof.
"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
<PAGE>
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.
"Event of Default" means (i) a default by the Guarantor on any of its
payment obligations under this Guarantee Agreement and (ii) a default by the
Guarantor on any other obligation hereunder that remains uncured after 30 days
from the occurrence thereof.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) required to be paid on the
Preferred Securities, to the extent the Issuer shall have funds on hand
available therefor at such time, (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to any Preferred Securities called for redemption by the
Issuer, to the extent the Issuer shall have funds on hand available therefor at
such time, and (iii) upon a voluntary or involuntary termination, winding-up or
liquidation of the Issuer, unless Subordinated Debt Securities are distributed
to the Holders, the lesser of (a) the aggregate of the Liquidation Amount of $25
per Preferred Security plus accumulated and unpaid Distributions on the
Preferred Securities to the date of payment, to the extent the Issuer shall have
funds on hand available therefor at such time and (b) the amount of assets of
the Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" has the meaning set forth in the preamble to this
Guarantee Agreement.
"Holder" means 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, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of February 23, 2000
among the Company and The Bank of New York, as trustee thereunder.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Preferred Securities" means, except
as provided in the Declaration and 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 percentage is determined) of the
Preferred Securities voted by such Holders represents more than 50% of the above
stated aggregate liquidation amount of all Preferred Securities.
-2-
<PAGE>
"Officer's Certificate" means a certificate signed by any one of the
Chairman of the Board, Chief Executive Officer, President, a Vice President, the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Guarantee Trustee. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that the officer signing the Officer's Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's
Certificate;
(c) a statement that 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 such officer, such
condition or covenant has been complied with.
"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.
"Record Date" means, with respect to Preferred Securities that are held in
book-entry form, the date that is one Business Day before the relevant
Distribution Date, and with respect to Preferred Securities that are held in
definitive form, the 15/th/ day, whether or not a Business Day, before the
relevant Distribution Date.
"Responsible Officer" means, with respect to the 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 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.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
-3-
<PAGE>
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.
(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 List of Holders; Preferential Claims.
------------------------------------
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) not later than 15 days after each Record Date of each
year, a list, in such form as the Guarantee Trustee may reasonably require,
containing all the information in the possession or control of the Guarantor, as
to of the names and addresses of the Holders ("List of Holders") as of the
preceding respective Record Date, and (b) at such other times as the 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 Guarantee
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it, provided that the
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 31l(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Guarantee Trustee.
--------------------------------
Not later than 60 days following May 15 of each year, commencing May
15, 2001, the Guarantee Trustee shall provide to the Holders 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 Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
Section 2.4 Periodic Reports to the Guarantee Trustee. The Guarantor shall
-----------------------------------------
provide to the Guarantee Trustee such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act 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(a)(4) of the Trust Indenture
Act.
Section 2.5 Evidence of Compliance with Conditions Precedent. The
------------------------------------------------
Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if
-4-
<PAGE>
any, provided for in this Guarantee Agreement that 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 such Section 314(c)(1)
may be given in the form of an Officer's Certificate.
Section 2.6 Events of Default; Waiver. The Holders of a Majority in
-------------------------
Liquidation Amount of the Preferred Securities may, by vote, on behalf of the
Holders, 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 therefrom.
(a) Event of Default; Notice. The Guarantee Trustee shall, within 90
------------------------
days after the occurrence of an Event of Default actually known to a Responsible
Officer of the Guarantee Trustee, transmit by mail, first class postage prepaid,
to the Holders, 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 2.6(a) being hereby defined to be an Event of Default as, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein); provided, that, except in the case of a
default in the payment of a Guarantee Payment, the 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 Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.
Section 2.7 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 THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee.
------------------------------------------
(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not transfer
this Guarantee Agreement to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting and cessation of title shall be effective whether or not conveying
documents have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants, duties or
obligations shall be read into this Guarantee Agreement against the
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Guarantee Trustee. In case an Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6), the Guarantee Trustee shall enforce
this Guarantee Agreement for the benefit of the Holders and 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 its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(c) No provision of this Guarantee Agreement shall be construed to
relieve the 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
(b) of this Section;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee Trustee,
unless it shall be proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the 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 relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or exercising
any trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Guarantee Agreement or
indemnity reasonably satisfactory to it against such risk or liability is not
reasonably assured to it.
(d) 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 Guarantee Trustee shall be subject to the
provisions of this subsection.
Section 3.2 Certain Rights of Guarantee Trustee.
-----------------------------------
Subject to the provisions of Section 3.1:
(a) the 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, other evidence of indebtedness or other paper or
document reasonably believed by it to be genuine and to have been signed, sent
or presented by the proper party or parties; but in the case of any such
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certificates or opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Guarantee Trustee, the
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;
(b) any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's Certificate
unless otherwise prescribed herein;
(c) whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or established
before taking, suffering or omitting to take any action hereunder, the 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
Officer's Certificate which, upon receipt of such request from the Guarantee
Trustee, shall be promptly delivered by the Guarantor;
(d) the Guarantee Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(e) the Guarantee Trustee may consult with legal counsel of its
selection, and the written advice of such legal counsel or any 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 to be taken
by it hereunder in good faith and in reliance thereon and in accordance with
such advice or Opinion of Counsel. Such legal counsel may be legal counsel to
the Guarantor or any of its Affiliates and may be one of its employees;
(f) the 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 Holders, unless such Holders shall have provided to
the Guarantee Trustee such adequate security and indemnity reasonably
satisfactory to it, against the costs, expenses (including reasonable attorneys'
fees and expenses) and liabilities that might be incurred by it in complying
with such request or direction;
(g) the Guarantee 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 Guarantee Trustee may make such further inquiry or
investigation into such facts or matters as it considers reasonably necessary in
order to carry out its obligations in the administration of this Guarantee
Agreement, and if the 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;
(h) the Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, and the
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Guarantee Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it hereunder;
(i) whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee:
(i) may request written instructions from the Holders which
written instructions may only be given by the Holders of the same
proportion in aggregate Liquidation Amount of the Preferred Securities as
would be entitled to direct the Guarantee Trustee under the terms of the
Preferred Securities;
(ii) may refrain from enforcing such remedy or right or taking
such other action until such written instructions are received; and
(iii) shall be protected in acting in accordance with such
written instructions;
(j) except as otherwise expressly provided by this Guarantee
Agreement, the Guarantee Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Guarantee Agreement;
(k) the Guarantee Trustee shall not be deemed to have notice of any
default or Event of Default unless a Responsible Officer of the Guarantee
Trustee has actual knowledge thereof or unless written notice of any event which
is in fact such a default is received by the Guarantee Trustee at the Corporate
Trust Office of the Guarantee Trustee, and such notice references the Preferred
Securities and this Guarantee Agreement; and
(l) the rights, privileges, protections, immunities and benefits
given to the Guarantee Trustee, including, without limitation, its right to be
indemnified, are extended to each agent, custodian or other Person employed by
the Guarantee Trustee to act hereunder, and shall be enforceable by the
Guarantee Trustee in each of its capacities hereunder.
No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
Section 3.3 Compensation; Indemnity; Fees. The Guarantor agrees:
-----------------------------
(a) to pay to the Guarantee Trustee from time to time such reasonable
compensation as shall be agreed to in writing between the Guarantor and the
Guarantee 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);
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(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by the Guarantee Trustee in accordance with any
provision of this Guarantee Agreement (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 or
willful misconduct; and
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless (i) the Guarantee Trustee, (ii) any Affiliate of the Guarantee
Trustee, (iii) any officer, director, shareholder, employee, representative or
agent of the Guarantee Trustee and (iv) any employee or agent of the Guarantee
Trustee or its Affiliates (referred to herein as an "Indemnified Person") from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by or in
connection with the administration of 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, 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 negligence or
willful misconduct with respect to such acts or omissions.
The provisions of this Section 3.3 shall survive the termination of
this Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
The Guarantee Trustee may not claim any lien or charge on any Trust
Property as a result of any amount due pursuant to this Section 3.3.
The Guarantor and the Guarantee Trustee (subject to Section 3.4) 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 Guarantor, and neither the Guarantor nor the Holders shall have any
rights by virtue of this Guarantee Agreement 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 Guarantor, shall not be deemed
wrongful or improper. The Guarantee Trustee shall not be obligated to present
any particular investment or other opportunity to the Guarantor even if such
opportunity is of a character that, if presented to the Guarantor, could be
taken by the Guarantor, and the Guarantee 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. The Guarantee
Trustee may engage or be interested in any financial or other transaction with
the Guarantor or any Affiliate of the Guarantor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Guarantor or its Affiliates.
Section 3.4 Conflicting Interests. If the Guarantee Trustee has or shall
---------------------
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Guarantee 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 Guarantee Agreement. The Guarantee Agreement is
hereby excluded for purposes of Section 310(b)(1) of the Trust Indenture Act.
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ARTICLE IV.
GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee; Eligibility.
------------------------------
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) 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, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
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 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 Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
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 the Guarantee Trustee.
-------------------------------------------------------------
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 30 days after
delivery to the Guarantor of an
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instrument of resignation or notice of removal pursuant to this Section 4.2, the
Guarantee Trustee resigning or being removed, as the case may be, may petition,
at the expense of the Guarantor, any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
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 or on behalf of 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 Guarantee Trustee, 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 (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Subordinated Debt Securities as provided in the Indenture), 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
obligation under, arising out of, or in connection with, the Preferred
Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders or the Guarantee Trustee 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;
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(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(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 of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders. The Guarantor expressly acknowledges that:
-----------------
(i) this Guarantee Agreement will be deposited with the Guarantee Trustee to be
held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to
enforce this Guarantee Agreement on behalf of the Holders; (iii) 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 Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer or any other Person.
Section 5.5 Guarantee of Payment. This Guarantee Agreement creates a
--------------------
guarantee of payment and not of performance or collection. This Guarantee
Agreement will not be discharged except by payment of the Guarantee Payments in
full (without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Subordinated Debt Securities to Holders as provided in the
Declaration.
Section 5.6 Subordination. The Guarantor shall be subrogated to all (if
-------------
any) rights of the Holders against the Issuer, in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement, and shall have the
right to waive payment by the Issuer pursuant to Section 5.1; 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 against the Issuer 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.
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ARTICLE VI.
COVENANTS AND SUBORDINATION
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank:
(a) pari passu with any other preferred securities guarantee similar
to the guarantee under this Guarantee Agreement issued by the Guarantor on
behalf of the holders of preferred securities issued by any trust established
by the Guarantor or its Affiliates other than the Trust;
(b) subordinate and junior in right of payment to all of the
Guarantor's other liabilities, except those that rank pari passu or are
subordinate by their terms;
(c) pari passu with any guarantee now or hereafter issued by the
Guarantor in respect of the most senior preferred or preference stock now or
hereafter issued by the Guarantor, and with any guarantee now or hereafter
issued by it in respect of any preferred or preference stock of any of its
Affiliates; and
(d) senior to the Guarantor's common stock.
ARTICLE VII.
TERMINATION
Section 7.1 Termination. This Guarantee Agreement shall terminate and be
-----------
of no further force and effect upon (i) full payment of the Redemption Price of
all Preferred Securities, (ii) the distribution of Subordinated Debt Securities
to the Holders in exchange for all of the Preferred Securities or (iii) full
payment of the amounts payable in accordance with the Declaration upon
liquidation of the Issuer. 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 must restore payment of any sums paid with respect
to Preferred Securities or this Guarantee Agreement.
ARTICLE VIII.
MISCELLANEOUS
Section 8.1 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 from time to time
outstanding. Except in connection with a consolidation, merger or sale involving
the Guarantor that is permitted under the Indenture and pursuant to which the
successor or assignee agrees in writing to perform the Guarantor's obligations
hereunder, the Guarantor shall not assign its obligations hereunder.
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Section 8.2 Amendments. Except with respect to any changes which do not
----------
adversely affect the rights of the Holders in any material respect (in which
case no consent of the Holders will be required), this Guarantee Agreement may
only be amended with the prior written approval of the Holders of a Majority in
Liquidation Amount of the Preferred Securities. The provisions of Article VI of
the Declaration concerning meetings of the Holders shall apply to the giving of
such approval.
Section 8.3 Notices. Any notice, request or other communication required
-------
or permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
Sempra Energy
101 Ash Street
San Diego, California 92101
Facsimile No.: 619-696-4577
Attention: Treasurer
(b) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) respective addresses set forth below or
such other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
Sempra Energy Capital Trust I
101 Ash Street
San Diego, California 92101
Facsimile No.: 619-696-4577
Attention: Regular Trustees of Sempra Energy Capital Trust I
with a copy to:
The Bank of New York
101 Barclay Street, 21-W
New York, New York 10286
Facsimile No.: 212-815-5915
Attention: Corporate Trust Administration
(c) if given to the Guarantee Trustee, at the Guarantee Trustee's
address set forth below or such other address as the Guarantee Trustee may give
notice to the Holders:
The Bank of New York
101 Barclay Street, 21-W
New York, New York 10286
Facsimile No.: 212-815-5915
Attention: Corporate Trust Administration
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(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, 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 8.4 Benefit. This Guarantee Agreement is solely for the benefit of
-------
the Holders and is not separately transferable from the Preferred Securities.
Section 8.5 Interpretation. In this Guarantee Agreement, unless the
--------------
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them in
Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(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;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
Section 8.6 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
-------------
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
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.
(Signatures follow)
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
SEMPRA ENERGY
By: /s/ Charles A. McMonagle
------------------------------
Charles A. McMonagle
Vice President and Treasurer
THE BANK OF NEW YORK,
as Guarantee Trustee
By: /s/ Michele L. Russo
------------------------------
Name: Michele L. Russo
Title: Assistant Treasurer
