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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 16, 2000
SEMPRA ENERGY
_______________________
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
CALIFORNIA 1-14201 33-0732627
__________ ___________ __________
(State of principal jurisdiction of (Commission file (I.R.S. employer
incorporation of organization) number) identification no.)
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101 Ash Street
San Diego, California 92101
________________
(Address of principal executive offices, including zip code)
(619) 696-2034
_____________
(Registrant's telephone number, including area code)
Not Applicable
_____________
(Former name or former address, if changed since last report)
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Item 5. Other Events
- ------- ------------
On February 16, 2000, Sempra Energy Capital Trust I sold $200,000,000 of
its 8.9% Cumulative Quarterly Income Preferred Securities, Series A, which are
guaranteed by Sempra Energy to the extent set forth in the Prospectus and
Prospectus Supplement with respect thereto dated February 16, 2000. For further
information concerning these securities, refer to the exhibits contained in this
Current Report on Form 8-K.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
- ------- -------------------------------------------------------------------
(a) Not applicable
(b) Not applicable
(c) Exhibits
Exhibit
Number Description
- ------ -----------
1.1 Underwriting Agreement dated February 16, 2000
1.2 Pricing Agreement dated February 16, 2000
4.1 Form of Subordinated Indenture
4.2 Form of Officers' Certificate
4.3 Form of Amended and Restated Declaration of Trust
4.4 Form of Guarantee Agreement
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SEMPRA ENERGY
By: /s/ Gary W. Kyle
--------------------------
Gary W. Kyle
Chief Corporate Counsel
February 18, 2000
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Exhibit 1.1
Sempra Energy Capital Trust I
Sempra Energy Capital Trust II
Sempra Energy Capital Trust III
Preferred Securities
guaranteed to the extent set forth in the Guarantees by
Sempra Energy
__________________________
Underwriting Agreement
----------------------
February 16, 2000
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time, Sempra Energy Capital Trust I, Sempra Energy Capital
Trust II or Sempra Energy Capital Trust III, each a statutory business trust
created under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ((S)) 3801 et
------ --
seq.) (each a "Trust" and collectively the "Trusts"), and Sempra Energy, a
- ---
California corporation (the "Company"), as sponsor of each Trust and as
guarantor, propose to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, that the Trust identified in the applicable Pricing
Agreement (such Trust being the "Designated Trust" with respect to such Pricing
Agreement) issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified therein) certain of its
preferred securities (the "Securities") representing undivided beneficial
interests in the assets of the Designated Trust. The Securities specified in
such Pricing Agreement are referred to as the "Firm Designated Securities" with
respect to such Pricing Agreement. If specified in such Pricing Agreement, the
Designated Trust may grant the Underwriters the right to purchase at their
election an additional number of Securities, for the sole purpose of covering
over-allotments, if any, in the sale of the Firm Designated Securities,
specified as provided in such Pricing Agreement as provided in Section 3 hereof
(the "Optional Designated Securities"). The Firm Designated Securities and any
Optional Designated Securities are collectively called the "Designated
Securities." The proceeds of the sale of the Designated Securities to the public
and of common securities of the Designated Trust (the "Common Securities") to
the Company concurrently with the sale of the Designated Securities are to be
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invested in subordinated deferrable interest debentures of the Company (the
"Subordinated Debentures") identified in the Pricing Agreement with respect to
such Designated Securities (with respect to such Pricing Agreement, the
"Designated Subordinated Debentures"), to be issued pursuant to a subordinated
indenture to be dated as of February 23, 2000 (as supplemented or amended from
time to time, the "Subordinated Indenture") between the Company and The Bank of
New York, as trustee (the "Indenture Trustee"). The Designated Securities will
be guaranteed by the Company to the extent set forth in a Preferred Securities
Guarantee Agreement between the Company and The Bank of New York, as trustee,
with respect to such Designated Securities (the "Designated Guarantee") (all
such Designated Guarantees together, the "Guarantees").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the amended and restated declaration of trust identified in such
Pricing Agreement (with respect to such Pricing Agreement, the "Trust
Agreement").
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of any Trust to sell any of the
Securities or as an obligation of any of the Underwriters to purchase any of the
Securities. The obligation of any Trust to issue and sell any of the Securities
and the obligation of any of the Underwriters to purchase any of the Securities
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the aggregate
liquidation amount of Firm Designated Securities, the maximum aggregate
liquidation amount of Optional Designated Securities, if any, the initial public
offering price of such Firm Designated Securities and Optional Designated
Securities or the manner of determining such price, the terms of the Designated
Securities, including the terms on which and terms of the securities into which
the Designated Securities will be exchangeable, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the number of such Designated Securities to be purchased by
each Underwriter and the commission, if any, payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of delivery of
such Firm Designated Securities and such Optional Designated Securities, if any,
and payment therefor. The Pricing Agreement shall also specify (to the extent
not set forth in the Trust Agreement and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company and the Designated Trust, jointly and severally, represent
and warrant to, and agree with, each of the Underwriters that:
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(a) A registration statement on Form S-3 (File No 333-77843) (the
"Initial Registration Statement") in respect of the Securities, the
Subordinated Debentures and the Guarantees and certain other securities has
been filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus contained therein, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such form;
other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule
462(b) under the Securities Act of 1933, as amended (the "Act"), which, if
so filed, became effective upon filing, no other document with respect to
the Initial Registration Statement or any document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission (other than documents filed after the filing date of the
Initial Registration Statement under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and prospectuses filed pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, each
in the form heretofore delivered to the Representatives); and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement,
if any, has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration Statement, any
post-effective amendment thereto and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective but excluding any Form T-1, each as amended at
the time such part of the Initial Registration Statement became effective
or such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, the
Subordinated Debentures and the Guarantees, in the form in which it has
most recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Exchange Act and incorporated
by reference in such Preliminary Prospectus or Prospectus, as the case may
be, as of the date of filing of such document; any reference to any
amendment to the Initial Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to Sections
13(a) or 15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus shall be deemed
to refer to the Prospectus as
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amended or supplemented in relation to the applicable Designated Securities
in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such filing);
(b) Based solely upon oral advice from the staff of the Commission,
the Trusts are not required to file reports or proxy or information
statements pursuant to Section 13(a), 13(c), 14 or 15(c) of the Exchange
Act. The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and the
Registration Statement conforms, and any further amendments or supplements
to the Registration Statement will conform, in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(d) Neither the Designated Trust nor the Company and any of its
subsidiaries (other than the Designated Trust) taken as a whole, have
sustained since the date of the latest audited
4
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financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in the
capital stock or long-term debt of the Designated Trust, the Company or any
of its subsidiaries (other than the Designated Trust) or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Designated
Trust or the Company and its subsidiaries (other than the Designated
Trust), taken as a whole, otherwise than as set forth or contemplated in
the Prospectus;
(e) The Designated Trust has been duly created and is validly
existing as a business trust in good standing under the laws of the State
of Delaware and all filings required under the laws of the State of
Delaware with respect to the creation and valid existence of the Designated
Trust as a business trust have been made;
(f) The Designated Trust has the power and authority to conduct its
business as described in the Prospectus;
(g) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of California,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except where the failure to be so qualified would not
subject it to material liability or disability; and each of Southern
California Gas Company, a California corporation ("SCGC"), San Diego Gas &
Electric Company, a California corporation ("SDG&E"), Pacific Enterprises,
a California corporation ("PE"), and Enova Corporation, a California
corporation ("Enova") (collectively, SCGC, SDG&E, PE and Enova are referred
to herein as the "Significant Subsidiaries") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable and, except for the outstanding preferred
stock of SCGC and PE and outstanding preferred and preference stock of
SDG&E, are owned directly or indirectly by the Company free and clear of
all liens, encumbrances, equities or claims; the Designated Trust has an
authorized capitalization as described in the Prospectus, and all the
outstanding beneficial interests in the Designated Trust have been duly and
validly authorized and issued, are fully paid and non-assessable and
conform in all material respects to the descriptions thereof contained in
the Prospectus;
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(i) The Designated Securities have been duly authorized, and, when
the Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities and, in the case of any Optional Designated Securities, pursuant
to an Over-allotment Option (as defined in Section 3 hereof) with respect
to such Designated Securities, such Designated Securities will be duly and
validly issued and will be fully paid and non-assessable beneficial
interests in the Designated Trust entitled to the benefits provided by the
applicable Trust Agreement; the issuance of the Designated Securities will
not be subject to preemptive or other similar rights; and the Designated
Securities will conform in all material respects to the description thereof
contained in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(j) The holders of the Designated Securities (the "Securityholders")
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware;
(k) The Common Securities of the Designated Trust have been duly
authorized, and, when the Common Securities of the Designated Trust are
issued and delivered pursuant to the applicable Trust Agreement, such
Common Securities will be duly and validly issued and will be fully paid
beneficial interests in the Designated Trust entitled to the benefits
provided by the applicable Trust Agreement and will conform in all material
respects to the description thereof contained in the Prospectus; the
issuance of the Common Securities of the Designated Trust will not be
subject to preemptive or other similar rights; and at each Time of Delivery
(as defined in Section 4 hereof), all of the issued and outstanding Common
Securities of the Designated Trust will be directly owned by the Company
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity;
(l) The Designated Guarantee, the Trust Agreement for the Designated
Trust, the Designated Subordinated Debentures and the Subordinated
Indenture (the Designated Guarantee, the Designated Expense Agreement, such
Trust Agreement, the Designated Subordinated Debentures and the
Subordinated Indenture being collectively referred to as the "Company
Agreements") have each been duly authorized by the Company and, when
executed and delivered by the Company and (i) in the case of the Designated
Guarantee, by the Preferred Guarantee Trustee (as defined in the Designated
Guarantee), (ii) in the case of the Trust Agreement, by the Trustees (as
defined in the Trust Agreement), (iii) in the case of the Subordinated
Indenture, by the Indenture Trustee, and (iv) in the case of the Designated
Subordinated Debentures, when authenticated and delivered by the Indenture
Trustee and paid for by the Designated Trust in accordance with the
applicable Note Purchase Agreement (the "Note Purchase Agreement") between
the Company and the Designated Trust, will be duly executed and delivered
by the Company (and, in the case of the Designated Subordinated Debentures,
duly authenticated and issued) and will constitute at each Time of Delivery
valid and legally binding obligations of the Company, enforceable in
accordance with their respective terms (and, in the case of the Designated
Subordinated Debentures, entitled to the benefits of the Subordinated
Indenture), subject, as to enforcement, to bankruptcy, insolvency,
receivership,
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liquidation, fraudulent conveyance, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the Trust
Agreement, the Subordinated Indenture and the Designated Guarantee have
each been duly qualified under the Trust Indenture Act; and the Company
Agreements will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to the Designated
Securities, the Designated Guarantee and the Designated Subordinated
Debentures to which they relate;
(m) The Trust Agreement for the Designated Trust has been duly
authorized by the Designated Trust and, when executed and delivered by the
Designated Trust and by the Trustees (as defined in the Trust Agreement)
will be duly executed and delivered by the Designated Trust and will
constitute at each Time of Delivery valid and legally binding obligations
of the Designated Trust, enforceable in accordance with their respective
terms, subject, as to enforcement, to bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(n) The issue and sale of the Designated Securities and the Common
Securities by the Designated Trust, the compliance by the Designated Trust
with all of the provisions of this Agreement, any Pricing Agreement and
each Over-allotment Option, if any, the Designated Securities, the Common
Securities of such Designated Trust, and the Trust Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which such Designated Trust or the Company or
any of its Significant Subsidiaries is a party or by which such Designated
Trust or the Company or any of its Significant Subsidiaries is bound or to
which any of the material properties or assets of such Designated Trust or
the Company or any of its Significant Subsidiaries is subject, nor will
such action result in any violation of the provisions of the Certificate of
Trust or Trust Agreement of such Designated Trust or the provisions of the
Articles of Incorporation or By-laws of the Company or any of its
Significant Subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over such
Designated Trust, the Company or any of its Significant Subsidiaries or any
of their material properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Designated Securities and the Common Securities by such Designated Trust or
the consummation by such Designated Trust or the Company of the
transactions contemplated by this Agreement, any Pricing Agreement or any
Over-allotment Option, the Designated Securities, the Common Securities of
such Designated Trust, or the Trust Agreement, except such as have been
obtained under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the Underwriters;
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(o) The issue by the Company of the Guarantees and the Subordinated
Debentures, the compliance by the Company with all of the provisions of
this Agreement, any Pricing Agreement, the Guarantees, the Subordinated
Debentures, the Trust Agreement and the Subordinated Indenture, and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its Significant
Subsidiaries is bound or to which any of the material properties or assets
of the Company or any of its Significant Subsidiaries is subject, nor will
such action result in any violation of the provisions of the Articles of
Incorporation or By-Laws of the Company and its Significant Subsidiaries or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
Significant Subsidiaries or any of their material properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue of the Guarantees or the issue and sale of the Subordinated
Debentures or the consummation by the Company of the transactions
contemplated by this Agreement, any Pricing Agreement, the Guarantees, the
Subordinated Debentures, the Trust Agreement or the Subordinated Indenture,
except such as have been obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the issuance by the Company of the Guarantees and the
issue and sale of the Subordinated Debentures;
(p) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Securities", "Description
of Debt Securities", "Description of Preferred Securities", "Description of
Preferred Securities Guarantees", "Description of Series A QUIPS" and
"Description of Series A QUIDS", insofar as they purport to constitute a
summary of the terms of the Securities, the Common Securities, the
Subordinated Debentures, the Guarantees and the Company Agreements and
under the captions "Material United States Federal Income Tax
Considerations" (or similar caption), "Plan of Distribution" and
"Underwriting", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair in
all material respects;
(q) Neither the Designated Trust, the Company nor any of its
Significant Subsidiaries is (i) in violation of the Trust Agreement for the
Designated Trust, the Certificate of Trust for the Designated Trust, the
Articles of Incorporation or By-Laws of the Company, or the charter or by-
laws of any of its Significant Subsidiaries, or (ii) in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument to which it is
a party or by which it or any of its properties may be bound, except in the
case of clause (ii) for such defaults which, individually or in the
aggregate, would not reasonably be expected to have a material adverse
effect on the consolidated financial position, shareholders' equity or
8
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results of operations of either the Designated Trust or the Company and its
subsidiaries (other than the Designated Trust), taken as a whole;
(r) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Designated Trust, the Company
or any of its subsidiaries (other than the Designated Trust) is a party or
of which any of their properties is the subject which, if determined
adversely to the Designated Trust, the Company or any of its subsidiaries
(other than the Designated Trust), would individually or in the aggregate
have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of either
the Designated Trust or the Company and its subsidiaries (other than the
Designated Trust), taken as a whole; and, to the best of the Designated
Trust's and the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(s) Neither the Designated Trust nor the Company is or, after giving
effect to the offering and sale of the Designated Securities and the
Designated Guarantee, will be, an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(t) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(u) The financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the Registration
Statement and Prospectus present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated results of
their operations for the periods specified; and, except as stated therein,
such financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a consistent
basis;
(v) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company and its
subsidiaries, taken as a whole, have a material relationship to evaluate
the extent to which the business or operations of the Company and its
subsidiaries, taken as a whole, have been or will be affected by the Year
2000 Problem. As a result of such review, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem has had or could
reasonably be expected to have a material adverse effect on the current or
future consolidated financial position, business prospects, shareholders'
equity or results of operations of the Company and its subsidiaries, taken
as a whole, or has resulted or will result in any material loss or
interference with the business or operations of the Company and its
subsidiaries, taken as a whole. The "Year 2000 Problem" as used herein
means any significant risk that computer hardware or software used by the
Company or any of its subsidiaries in the receipt, transmission,
processing, manipulation, storage, retrieval, retransmission or other
utilization of data or in the operation of mechanical or electrical systems
of any kind is not functioning or will not function, in the case of dates
or time periods occurring after
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December 31, 1999, at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000;
(w) The Company has received an order from the Commission exempting
the Company from all of the provisions of the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"), except for Section
9(a)(2) thereof;
(x) The Company and its subsidiaries possess such certificates,
authorities or permits issued by the appropriate state, federal, local or
foreign regulatory agencies or bodies necessary to conduct the businesses
now operated by them, except where the failure to possess such
certificates, authorities or permits, individually or in the aggregate,
would not have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, individually or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
material adverse affect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole;
(y) The Company and its subsidiaries are in compliance with, and
conduct their respective businesses in conformity with, all applicable
state, federal, local and foreign laws and regulations relating to the
operation and ownership of a public utility, including, without limitation,
those relating to the distribution and transmission of natural gas, except
to the extent that any failure so to comply or conform would not
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole; and
(z) The Designated Subordinated Debentures will be classified for
United States federal income tax purposes as indebtedness of the Company.
3. Upon the execution of the Pricing Agreement applicable to any Firm
Designated Securities and authorization by the Representatives of the release of
such Firm Designated Securities, the several Underwriters propose to offer such
Firm Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable
to any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth therein, for the sole purpose of
covering over-allotments, if any, in the sale of the Firm Designated Securities.
Any such election to purchase Optional Designated Securities may be exercised by
written notice from the Representatives to the Designated Trust and the Company,
given within a period specified in the Pricing Agreement, setting forth the
aggregate number of Optional Designated Securities to be purchased and the date
on which such Optional Designated Securities are to be delivered, as determined
by the Representatives but in no event earlier than the First Time of Delivery
(as
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defined in Section 4 hereof) or, unless the Representatives, the Designated
Trust and the Company otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice set forth in
such Pricing Agreement.
The number of Optional Designated Securities to be added to the number of
Firm Designated Securities to be purchased by each Underwriter as set forth in
Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Designated Trust and the Company have been advised by the Representatives have
been attributed to such Underwriter; provided that, if the Designated Trust and
the Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion of Optional
Designated Securities which the number of Firm Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of Optional
Designated Securities which the Underwriters elect to purchase.
As compensation to the Underwriters of the Designated Securities for their
commitments hereunder and under the Pricing Agreement, and in view of the fact
that the proceeds of the sale of the Designated Securities will be used by the
Designated Trust to purchase the Designated Subordinated Debentures of the
Company, the Company agrees to pay at each Time of Delivery to the
Representatives, for the accounts of the several Underwriters, the amount set
forth in the Pricing Agreement per Designated Security for the Designated
Securities to be delivered at each Time of Delivery.
4. Certificates for the Firm Designated Securities and the Optional
Designated Securities, if any, to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in the Trust
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Designated Trust and the Company, shall be delivered by or on behalf of the
Designated Trust to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer of Federal (same-day) funds to the account specified
by the Designated Trust, (i) with respect to the Firm Designated Securities, all
in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives, the
Designated Trust and the Company may agree upon in writing, such time, date and
place being herein called the "First Time of Delivery" and (ii) with respect to
the Optional Designated Securities, if any, in the manner and at the place and
time and date specified by the Representatives in the written notice given by
the Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other place and time and date as the
Representatives, the Designated Trust and the Company may agree upon in writing,
such time, date and place, if not the First Time of Delivery, being herein
called the "Second Time of Delivery". Each such time and date for delivery is
herein called a "Time of Delivery".
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<PAGE>
5. The Designated Trust and the Company, jointly and severally, agree
with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the last Time of Delivery for such Securities
which shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery
and furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company or the Designated Trust with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of such Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to promptly use
commercially reasonable efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities or the Designated Subordinated Debentures for offering and sale
under the securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of such Designated Securities or
such Designated Subordinated Debentures, provided that in connection
therewith neither the Designated Trust nor the Company shall be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York business
day next succeeding the date of any Pricing Agreement for such Designated
Securities, or such later time or date as agreed to by the Designated
Trust, the Company and the Representatives, and from time to time, to
furnish the Underwriters with copies of the Prospectus in New York City as
amended or supplemented in such quantities as the
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<PAGE>
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Designated Securities or the Designated Subordinated Debentures and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance;
(d) In the case of the Company, to make generally available to its
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the Company
and its consolidated subsidiaries and, if at such time, the Designated
Trust is required to file reports and proxy or information statements
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, of the
Designated Trust (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Designated Trust and the Company
by the Representatives and (ii) 30 days after the last Time of Delivery for
such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any Securities, any other beneficial interests in the
assets of any Trust, or any preferred securities or any other securities of
any Trust or the Company, as the case may be, that are substantially
similar to such Designated Securities (including any guarantee of such
securities) or any securities that are convertible into or exchangeable
for, or that represent the right to receive, Securities, preferred
securities or any such substantially similar securities of any Trust or the
Company, or any debt securities of the Company (other than the Designated
Subordinated Debentures and the senior debt securities of the Company which
are being sold concurrently with the Designated Securities to be sold by
Sempra Energy Capital Trust I) which mature more than one year after such
Time of Delivery (other than guarantees of commercial notes offered from
time to time by Sempra Energy Holdings pursuant to its commercial paper
program) and which are substantially similar to such Designated Securities,
without the prior written consent of the Representatives;
(f) In the case of the Company, to issue the Designated Guarantee
concurrently with the issue and sale of the Designated Securities as
contemplated herein or in the Pricing Agreement;
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<PAGE>
(g) To use its best efforts to list within 30 days following the
First Time of Delivery, subject to notice of issuance, the Designated
Securities on the New York Stock Exchange and, if the Company elects to
dissolve the Designated Trust and to distribute the Designated Subordinated
Debentures to the holders of the Designated Securities in liquidation of
the Designated Trust, to use its best efforts to list the Designated
Subordinated Debentures on the New York Stock Exchange prior to such
distribution; and
(h) If the Designated Trust and the Company elect to rely upon Rule
462(b), the Designated Trust and the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and
the Designated Trust and the Company shall at the time of filing either pay
to the Commission the filing fee for the Rule 462(b) Registration Statement
or give irrevocable instructions for the payment of such fee pursuant to
Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities, the Guarantees and the Subordinated Debentures
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any Company Agreement (including any amendment or supplement
to the Subordinated Indenture), the Securities, the Common Securities, the
Subordinated Debentures, any Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities and
the Subordinated Debentures; (iii) all expenses in connection with the
qualification of the Securities and, if necessary, the Subordinated Debentures,
for offering and sale under state securities laws as provided in Section 5(b)
hereof, including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities and the Subordinated Debentures; (v)
any filing fees incident to, and the reasonable fees and disbursements of
counsel for the Underwriters in connection with, any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities and the issuance of the Guarantees and the Subordinated Debentures;
(vi) the cost of preparing the Securities and the Subordinated Debentures; (vii)
the fees and expenses of any Indenture Trustee, Preferred Guarantee Trustee (as
defined in any Designated Guarantee) or other trustee (including any trustee
under any Trust Agreement), and any agent of any such trustee and the reasonable
fees and disbursements of counsel for any such trustee in connection with any
Trust Agreement, the Subordinated Indenture, any Guarantee, the Securities and
the Subordinated Debentures; (viii) any fees and expenses in connection with
listing the Securities and the Subordinated Debentures and the cost of
registering the Securities under Section 12 of the Exchange Act; and (ix) all
other costs and expenses incident to the performance of its obligations
hereunder and under any Over-allotment Options which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and
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<PAGE>
Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Company in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Designated Trust
and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Designated Trust and the Company have
elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement
shall have become effective by 10:00 P.M., Washington, D.C. time, on the
date of the applicable Pricing Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information
on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated each Time of
Delivery for such Designated Securities, with respect to the Registration
Statement and the Prospectus as amended or supplemented, as well as such
other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Gary W. Kyle, Chief Corporate Counsel of the Company, shall have
furnished to the Representatives a written opinion or opinions, dated each
Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of California, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except
where the failure to be so qualified would not subject it to material
liability or disability; and each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation;
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<PAGE>
(ii) The Company has an authorized capitalization as set forth
in the Prospectus and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; and all of the issued shares of capital stock
of each Significant Subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable and, except for the
outstanding preferred stock of SCGC and PE and the outstanding
preferred and preference stock of SDG&E, are owned of record directly
or indirectly by the Company and, to such counsel's knowledge, free
and clear of all liens, encumbrances, equities or claims;
(iii) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Designated Trust, the Company or any
of its subsidiaries (other than the Designated Trust) is a party or of
which any property of the Designated Trust, the Company or any of its
subsidiaries (other than the Designated Trust) is the subject which,
if determined adversely to the Designated Trust, the Company or any of
its subsidiaries (other than the Designated Trust), would reasonably
be expected, individually or in the aggregate, to have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the
Designated Trust or the Company and its subsidiaries (other than the
Designated Trust), taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Company Agreements have each been duly authorized,
executed and delivered by the Company and when executed and delivered
(i) in the case of the Designated Guarantee, by the Preferred
Guarantee Trustee (as defined in the Designated Guarantee), (ii) in
the case of the Trust Agreement, by the Trustees (as defined in the
Trust Agreement), (iii) in the case of the Subordinated Indenture, by
the Indenture Trustee, and (iv) in the case of the Designated
Subordinated Debentures, when authenticated and delivered by the
Indenture Trustee and paid for by the Designated Trust in accordance
with the applicable Note Purchase Agreement between the Company and
the Designated Trust, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
respective terms (and, in the case of the Designated Subordinated
Debentures, entitled to the benefits of the Subordinated Indenture),
subject, as to enforcement, to bankruptcy, insolvency, receivership,
liquidation, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Trust Agreement, the Subordinated Indenture and the
Designated Guarantee have each been duly qualified under the Trust
Indenture Act; and the Company Agreements, the
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<PAGE>
Designated Securities and the Common Securities of the Designated
Trust will conform to the descriptions thereof in the Prospectus;
(vi) The issue and sale of the Designated Securities and the
Common Securities by the Designated Trust, the compliance by the
Designated Trust and the Company with all of the provisions of this
Agreement, the Pricing Agreement, the Designated Securities, the
Common Securities of such Designated Trust and the Trust Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
material contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which such Designated
Trust or the Company or any of its Significant Subsidiaries is a party
or by which such Designated Trust or the Company or any of its
Significant Subsidiaries is bound or to which any of the material
properties or assets of such Designated Trust or the Company or any of
its Significant Subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Trust of the
Designated Trust or the Articles of Incorporation or By-laws of the
Company or any of its Significant Subsidiaries or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Designated Trust or the Company or any
of its Significant Subsidiaries or any of their material properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated by this Agreement, the Pricing Agreement, the Designated
Securities, the Common Securities of such Designated Trust or the
Company Agreements, except such as have been obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Designated Securities by the
Underwriters;
(vii) The issue by the Company of the Guarantees and the issue
and sale of the Subordinated Debentures, the compliance by the Company
with all of the provisions of the Guarantees, the Subordinated
Debentures and the Subordinated Indenture, and the consummation of the
transactions therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any material contract, indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which the Company or any of its
Significant Subsidiaries is bound or to which any of the material
properties or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such actions result in any violation
of the provisions of the Articles of Incorporation or By-Laws of the
Company and its Significant Subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its Significant Subsidiaries
or any of their material properties; and no consent, approval,
authorization, order, registration or qualification of or with any
such
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<PAGE>
court or governmental agency or body is required for the issue of
the Guarantees or the issue and sale of the Subordinated Debentures or
the consummation by the Company of the transactions contemplated by
the Guarantees, the Subordinated Debentures, or the Subordinated
Indenture, except such as have been obtained under the Act and the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the issue by the
Company of the Guarantees and the issue and sale of the Subordinated
Debentures;
(viii) The statements set forth in the Prospectus as amended or
supplemented under the captions "Description of Securities",
"Description of Debt Securities", "Description of Preferred
Securities", "Description of Preferred Securities Guarantees",
"Description of Series A QUIPS" and "Description of Series A QUIDS"
insofar as they purport to constitute a summary of the terms of the
Securities, the Common Securities, the Subordinated Debentures, the
Guarantees and the Company Agreements and under the captions "Plan of
Distribution" and "Underwriting", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects;
(ix) All of the issued and outstanding Common Securities of the
Designated Trust will be directly owned of record by the Company and,
to such counsel's knowledge, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(x) Neither the Company nor any of its Significant
Subsidiaries is (i) in violation of its By-laws or Articles of
Incorporation or (ii) in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound, except in the case
of clause (ii) for such defaults which, individually or in the
aggregate, would not reasonably be expected to have a material adverse
effect on the consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole;
(xi) Neither the Company nor the Designated Trust is, or after
giving effect to the offering and sale of the Designated Securities
and the Designated Guarantee, will be, an "investment company", as
such term is defined in the Investment Company Act;
(xii) Based solely upon oral advice from the staff of the
Commission, the Trusts are not required to file reports or proxy or
information statements pursuant to Section 13(a), 13(c), 14 or 15(c)
of the Exchange Act. The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with
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the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading; it being
understood that such counsel expresses no belief with respect to the
financial statements or other financial data included or incorporated
by reference in, or omitted from, the Prospectus as amended or
supplemented;
(xiii) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company or the Designated Trust prior to the Time of
Delivery for the Designated Securities (in each case, excluding the
documents incorporated by reference therein) comply as to form in all
material respects with the requirements for registration statements on
Form S-3 under the Act, and the requirements under the Trust Indenture
Act and the rules and regulations of the Commission thereunder, it
being understood, however, that such counsel expresses no opinion with
respect to the financial statements, schedules or other financial data
included or incorporated by reference in, or omitted from the
Registration Statement or the Prospectus as amended or supplemented or
with respect to any Form T-1. In passing upon the compliance as to
form of the Registration Statement and the Prospectus as amended or
supplemented (in each case, excluding the documents incorporated by
reference therein), except for those statements referred to in the
opinion in subsection (viii) of this Section 7(c), such counsel has
assumed that the statements made and incorporated by reference therein
are correct and complete; and
(xiv) The Company has received an order from the Commission
exempting the Company from all of the provisions of the 1935 Act,
except for Section 9(a)(2) thereof.
(d) Counsel for the Company and the Designated Trust satisfactory to
the Representatives shall have furnished to the Representatives their written
opinion or opinions, dated each Time of Delivery for such Designated Securities,
in form and substance satisfactory to the Representatives, to the effect that:
(i) Each of the Trust Agreement and the Subordinated Indenture
constitutes a legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms;
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(ii) The Designated Subordinated Debentures, when executed and
authenticated in accordance with the terms of the Subordinated
Indenture and delivered to and paid for by the Designated Trust in
accordance with the terms of the Note Purchase Agreement, will
constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, and
are entitled to the benefits of the Subordinated Indenture;
(iii) The Designated Guarantee, upon due execution,
authentication and delivery of the Designated Securities, will
constitute a legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms; and
(iv) The Registration Statement and the Prospectus as amended
or supplemented (in each case, excluding the documents incorporated by
reference therein) comply as to form in all material respects with the
requirements for registration statements on Form S-3 under the Act,
and the requirements under the Trust Indenture Act and the rules and
regulations of the Commission thereunder; it being understood,
however, that such counsel expresses no opinion with respect to the
financial statements, schedules or other financial data included or
incorporated by reference in, or omitted from, the Registration
Statement or the Prospectus as amended or supplemented or with respect
to any Form T-1. In passing upon the compliance as to form of the
Registration Statement and the Prospectus as amended or supplemented
(in each case, excluding the documents incorporated by reference
therein), such counsel has assumed that the statements made and
incorporated by reference therein are correct and complete.
In addition, such counsel shall provide a statement to the effect that
such counsel has participated in telephone conferences with officers and
other representatives of the Company, the Designated Trust and
representatives of the Underwriters, at which the contents of the
Registration Statement and the Prospectus as amended or supplemented and
related matters were discussed and, although such counsel is not passing
upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained or incorporated by
reference in the Registration Statement and the Prospectus as amended or
supplemented and has not made any independent check or verification
thereof, during the course of such participation, no facts came to such
counsel's attention that caused them to believe that the Registration
Statement, at the time it became effective, contained an untrue statement
of material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that
the Prospectus as amended or supplemented (including the documents
incorporated by reference), as of its date and as of the date of such
opinion, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel expresses no belief with
respect to the financial statements or other financial data included or
incorporated by reference in, or omitted from, the Registration Statement
or Prospectus as amended or supplemented.
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(e) Special Delaware counsel to the Designated Trust and the Company
satisfactory to the Representatives shall have furnished to the Representatives
their written opinion or opinions, dated each Time of Delivery for such
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Designated Trust has been duly created and is validly
existing in good standing as a business trust under the laws of the State
of Delaware, and all filings required under the laws of the State of
Delaware with respect to the creation and valid existence of the Designated
Trust as a business trust have been made;
(ii) Under the Delaware Act and the Trust Agreement, the Designated
Trust has the trust power and authority to own property and conduct its
business, all as described in the Prospectus;
(iii) The Designated Securities have been duly authorized by the
Trust Agreement and are duly and validly issued, fully paid and, subject to
the qualifications set forth in this paragraph, non-assessable undivided
beneficial interests in the assets of the Designated Trust, and are
entitled to the benefits provided by the Trust Agreement. The holders of
Designated Securities (the "Preferred Security Holders"), as beneficial
owners of the Designated Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware. We note that the Preferred Security Holders may be obligated,
pursuant to the Trust Agreement, (a) to provide indemnity and security in
connection with and pay taxes or governmental charges arising from
transfers of certificates evidencing the Designated Securities and the
issuance of replacement certificates, and (b) to provide security and
indemnity in connection with requests of or directions to the Property
Trustee (as defined in the Trust Agreement) to exercise its rights and
remedies under the Trust Agreement;
(iv) The Trust Agreement constitutes a valid and binding obligation of
the Company and the trustees of the Designated Trust, and is enforceable
against the Company and the trustees of the Designated Trust, in accordance
with its terms, subject, as to enforcement, to the effect upon the Trust
Agreement of (i) bankruptcy, insolvency, reorganization, moratorium,
receivership, liquidation, fraudulent transfer and conveyance, and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution;
(v) The issue and sale by the Designated Trust of the Designated
Securities and the Common Securities of the Designated Trust, the
compliance by the Designated Trust of this Agreement, the Pricing
Agreement, the Designated Securities, the Common Securities of the
Designated Trust and the Trust
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Agreement, and the consummation by the Designated Trust of the transactions
herein and therein contemplated do not violate (a) any provisions of the
Certificate of Trust of the Designated Trust (as amended to date) or the
Trust Agreement, or (b) any applicable Delaware law or administrative
regulation;
(vi) Under the Delaware Act and the Trust Agreement, the Designated
Trust has the requisite trust power and authority to (a) execute, deliver
and perform its obligations under this Agreement and the Pricing Agreement,
(b) issue and perform its obligations under the Designated Securities and
the Common Securities of the Designated Trust, and (c) to purchase and hold
the Designated Subordinated Debentures;
(vii) The Common Securities of the Designated Trust have been duly
authorized and are validly issued and fully paid undivided beneficial
interests in the assets of the Designated Trust and are entitled to the
benefits provided by the Trust Agreement;
(viii) Under the Delaware Act and the Trust Agreement, the issuance of
the Designated Securities and the Common Securities of the Designated Trust
is not subject to preemptive rights;
(ix) No consent, approval, authorization, order or registration with
or qualification of or with any Delaware court or Delaware governmental
authority or Delaware agency is required to be obtained by the Designated
Trust solely in connection with the issue and sale of the Designated
Securities and the Common Securities of the Designated Trust or the
consummation of the transactions contemplated by this Agreement or the
Pricing Agreement;
(x) Under the Delaware Act and the Trust Agreement, the execution
and delivery by the Designated Trust of this Agreement and the Pricing
Agreement, and the performance by the Designated Trust of its obligations
hereunder and thereunder, have been duly authorized by the requisite trust
action on the part of the Designated Trust; and
(xi) Assuming that the Designated Trust derives no income from or
connected with sources within the State of Delaware and has no assets,
activities (other than maintaining the Delaware Trustee (as defined in the
Trust Agreement) and the filing of documents with the Secretary of State of
the State of Delaware) or employees in the State of Delaware and assuming
that the Designated Trust is treated as a grantor trust for federal income
tax purposes, the holders of the Designated Securities (other than those
holders who reside or are domiciled in the State of Delaware) will have no
liability for income taxes imposed by the State of Delaware solely as a
result of their participation in the Designated Trust, and the Designated
Trust will not be liable for any income tax imposed by the State of
Delaware.
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(f) Tax counsel for the Designated Trust and the Company satisfactory
to the Representatives shall have furnished to the Representatives their
written opinion (a draft of such opinion is attached as Annex III(a)
hereto), dated each Time of Delivery for such Designated Securities, in
form and substance satisfactory to the Representatives, to the effect that
such firm confirms its opinion set forth in the Prospectus as amended or
supplemented under the caption "Material United States Federal Income Tax
Considerations" and that the Designated Subordinated Debentures will be
classified for United States federal income tax purposes as indebtedness of
the Company;
(g) Counsel for the Indenture Trustee, the Property Trustee (as such
term is defined in the Trust Agreement for the Designated Trust) and the
Preferred Guarantee Trustee satisfactory to the Representatives shall have
furnished to the Representatives their written opinion (a draft of such
opinion is attached as Annex III (b) hereto), dated each Time of Delivery
for such Designated Securities, in form and substance satisfactory to the
Representatives, with respect to the trust powers, organization, valid
existence and good standing of each such trustee, the corporate power and
authority of each such trustee to execute, deliver and perform its
obligations under the Trust Agreement for the Designated Trust, the
Designated Guarantee and the Subordinated Indenture (the Trust Agreement
for the Designated Trust, the Designated Guarantee and the Subordinated
Indenture being collectively referred to as the "QUIPS Documents"), as the
case may be, the due authorization, execution and delivery by each such
trustee, as the case may be, of the QUIPS Documents, the validity and
enforceability against each such trustee, as the case may be, of the QUIPS
Documents, that execution, delivery and performance by each such trustee of
the QUIPS Documents does not conflict with or constitute a breach of the
charter or by-laws of each such trustee, that no consent, approval,
authorization of, or registration with, or any notice to any banking
authority is required for the execution, delivery and performance by each
such trustee of the QUIPS Documents or such other matters as the
Representatives may reasonably request;
(h) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at each Time of Delivery for such
Designated Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives a letter, dated the date of the
Pricing Agreement to the effect set forth in Annex II hereto, and a letter
dated each Time of Delivery reaffirming the statements made in their letter
dated the date of the Pricing Agreement, except that the specified date
referred to in such letter delivered on such Time of Delivery shall be a
date not more than three days prior to such Time of Delivery, and with
respect to such letter dated each such Time of Delivery, as to such other
matters as the Representatives may reasonably request and in form and
substance satisfactory to the Representatives;
(i) (i) Neither the Designated Trust nor the Company and any of its
subsidiaries (other than the Designated Trust) taken as a whole, shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated Securities any
loss
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or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities there shall not have been any change in the capital
stock or long-term debt of the Designated Trust or the Company or any of
its subsidiaries (other than the Designated Trust) or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Designated Trust or the Company or any of its
subsidiaries (other than the Designated Trust), otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of the
Pricing Agreement relating to the Designated Securities, the effect of
which, in any such case described in clause (i) or (ii), is in the judgment
of the Representatives so material and adverse to the Designated Trust or
the Company and its subsidiaries, taken as a whole, as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Firm Designated Securities or Optional Designated
Securities or both on the terms and in the manner contemplated in the
Prospectus as first amended or supplemented relating to the Designated
Securities;
(j) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred stock;
(k) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange, (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock Exchange; (iii) a
general moratorium on commercial banking activities declared by either
Federal or New York or California State authorities; or (iv) the outbreak
or escalation of hostilities involving the United States or the declaration
by the United States of a national emergency or war, if the effect of any
such event specified in this clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Firm Designated Securities or
Optional Designated Securities or both on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented relating to
the Designated Securities;
(l) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
business day next succeeding the date of any Pricing Agreement for such
Designated Securities; and
(m) The Designated Trust and the Company shall have furnished or
caused to be furnished to the Representatives at each Time of Delivery for
the Designated
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Securities a joint and several certificate of officers of the Designated
Trust and the Company satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Designated Trust and
the Company herein at and as of such Time of Delivery, as to the
performance by the Designated Trust and the Company of all of their
respective obligations hereunder to be performed at or prior to such Time
of Delivery, as to the matters set forth in subsections (a) and (i) of this
Section and as to such other matters as the Representatives may reasonably
request.
8.
(a) The Designated Trust and the Company, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses
are incurred; provided, however, that neither the Designated Trust nor the
Company shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Designated Securities, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Designated Trust and the Company by any
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Designated Securities.
(b) Each Underwriter will indemnify and hold harmless the Designated
Trust and the Company against any losses, claims, damages or liabilities to
which the Designated Trust may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as
25
<PAGE>
amended or supplemented and any other prospectus relating to the Designated
Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Designated Trust and
the Company by such Underwriter through the Representatives expressly for
use therein; and will reimburse the Designated Trust and the Company for
any legal or other expenses reasonably incurred by the Designated Trust or
the Company in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof, but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Designated
Trust and the Company on the one hand and the Underwriters of the
Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not
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only such relative benefits but also the relative fault of the Designated
Trust and the Company on the one hand and the Underwriters of the
Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Designated Trust and
the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Designated Trust and
the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Designated Trust and
the Company on the one hand or such Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Designated Trust, the
Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint. The
obligations of the Designated Trust and the Company in this subsection (d)
to contribute are joint and several.
(e) The obligations of the Designated Trust and the Company under
this Section 8 shall be in addition to any liability which the Designated
Trust or the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each trustee, officer and director of the
Designated Trust or the Company and to each person, if any, who controls
the Designated Trust or the Company within the meaning of the Act.
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9.
(a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or Optional Designated Securities which it
has agreed to purchase under the Pricing Agreement relating to such
Designated Securities, the Representatives may in their discretion arrange
for themselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not
arrange for the purchase of such Firm Designated Securities or Optional
Designated Securities, as the case may be, then the Designated Trust and
the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In
the event that, within the respective prescribed period, the
Representatives notify the Designated Trust and the Company that they have
so arranged for the purchase of such Designated Securities, or the
Designated Trust and the Company notify the Representatives that it has so
arranged for the purchase of such Designated Securities, the
Representatives or the Designated Trust and the Company shall have the
right to postpone a Time of Delivery for such Designated Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus
as amended or supplemented, or in any other documents or arrangements, and
the Designated Trust and the Company agree to file promptly any amendments
or supplements to the Registration Statement or the Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the
Representatives and the Designated Trust and the Company as provided in
subsection (a) above, the aggregate number of such Designated Securities
which remains unpurchased does not exceed one-eleventh of the aggregate
number of the Firm Designated Securities or Optional Designated Securities,
as the case may be, to be purchased at the respective Time of Delivery,
then the Designated Trust shall have the right to require each non-
defaulting Underwriter to purchase the number of Firm Designated Securities
or Optional Designated Securities, as the case may be, which such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm
Designated Securities or Optional Designated Securities, as the case may
be, which such Underwriter agreed to purchase under such Pricing Agreement)
of the Firm Designated Securities or Optional Designated Securities, as the
case may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a
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defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust and the Company as provided in subsection (a) above, the
aggregate number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which remains unpurchased exceeds one-
eleventh of the aggregate number of the Firm Designated Securities or
Optional Designated Securities, as the case may be, to be purchased at the
respective Time of Delivery, as referred to in subsection (b) above, or if
the Designated Trust and the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Firm Designated Securities or Optional Designated Securities, as the case
may be, of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Firm Designated Securities or the Over-allotment
Option relating to such Optional Designated Securities, as the case may be,
shall thereupon terminate, without liability on the part of any non-
defaulting Underwriter, the Designated Trust or the Company, except for the
expenses to be borne by the Designated Trust and the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust and the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Designated Trust or the Company, or any trustee, officer or
director or controlling person of the Designated Trust or the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be terminated
pursuant to Section 9 hereof, neither the Designated Trust nor the Company shall
then be under any liability to any Underwriter with respect to the Firm
Designated Securities or Optional Designated Securities with respect to which
such Pricing Agreement or Over-allotment Option, as the case may be, shall have
been terminated except as provided in Sections 6 and 8 hereof; but, if for any
other reason Designated Securities are not delivered by or on behalf of the
Designated Trust or the Company as provided herein, the Company will reimburse
the Underwriters through the Representatives for all out-of-pocket expenses
approved in writing by the Representatives, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of such Designated Securities, but neither the
Designated Trust nor the Company shall then be under further liability to any
Underwriter with respect to such Designated Securities except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
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All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Company shall bc
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary;
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Designated Trust and the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, each Designated Trust, the
Company and, to the extent provided in Sections 8 and 10 hereof, the trustees,
officers and directors of each Designated Trust and the Company and each person
who controls any Designated Trust or the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
Sempra Energy
By: /s/ Charles A. McMonagle
----------------------------------
Name: Charles A. McMonagle
Title: Vice President and Treasurer
Sempra Energy Capital Trust I
By: /s/ Charles A. McMonagle
----------------------------------
Name: Charles A. McMonagle
Title: Regular Trustee
Sempra Energy Capital Trust II
By: /s/ Charles A. McMonagle
----------------------------------
Name: Charles A. McMonagle
Title: Regular Trustee
Sempra Energy Capital Trust III
By: /s/ Charles A. McMonagle
----------------------------------
Name: Charles A. McMonagle
Title: Regular Trustee
31
<PAGE>
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Charles Schwab & Co. Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
By: /s/ Goldman, Sachs & Co.
----------------------------------------
(Goldman, Sachs & Co.)
32
<PAGE>
ANNEX I
Pricing Agreement
-----------------
Goldman, Sachs & Co.,
.
.
.
.
As Representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street
New York, New York 10004
, 2000
Ladies and Gentlemen:
Sempra Energy Capital Trust [I] [II] [III], a statutory business trust
created under the Business Trust Act of the State of Delaware (Chapter 38, Title
12, of the Delaware Code, 12 Del. C. ((S)) 3801 et seq.) (the "Designated
------
Trust"), and Sempra Energy, a California corporation (the "Company"), as sponsor
of the Designated Trust and as guarantor, propose, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated February 16,
2000 (the "Underwriting Agreement") between the Designated Trust and the Company
on the one hand and Goldman, Sachs & Co. and ., ., . and . on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities" [consisting of Firm Designated Securities and any Optional
Designated Securities the Underwriters may elect to purchase]). The principal
asset of the Designated Trust consists of debt securities of the Company
("Subordinated Debentures"), as specified in Schedule II to this Agreement. The
Designated Securities will be guaranteed by the Company to the extent set forth
in the Designated Guarantee with respect to such Designated Securities (the
"Guarantee"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated
I-1
<PAGE>
Securities pursuant to Section 12 of the Underwriting Agreement and the address,
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of [Firm] Designated Securities set
forth opposite the name of such Underwriter in Schedule I hereto[, and (b) in
the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Designated Securities, as provided below, the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust at the purchase price to the Underwriters set forth in Schedule II hereto
that portion of the number of Optional Designated Securities as to which such
election shall have been exercised.]
[The Designated Trust hereby grants to each of the Underwriters the right
to purchase at their election up to the number of Optional Designated Securities
set forth opposite the name of such Underwriter in Schedule I hereto on the
terms referred to in the paragraph above for the sole purpose of covering over-
allotments in the sale of the Firm Designated Securities. Any such election to
purchase Optional Designated Securities may be exercised by written notice from
the Representatives to the Designated Trust and the Company given within a
period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company and the Designated
Trust otherwise agree in writing, no earlier than ten or later than ten business
days after the date of such notice.]
I-2
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Designated Trust, the Company and for each of the
Representatives plus one for each counsel counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters, on the one hand, and the Designated Trust and the
Company, on the other hand. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Designated Trust and the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
Sempra Energy
By:
----------------------------------------
Name:
Title:
Sempra Energy Capital Trust [I] [II] [III]
By:
----------------------------------------
Name:
Title: Regular Trustee
Accepted as of the date hereof:
Goldman, Sachs & Co.
.
.
.
.
By:
---------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
I-3
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
[Maximum Number of
Number of Firm Optional Designated
Designated Securities Securities Which May
Underwriter to be Purchased be Purchased]
----------- --------------- -------------
<S> <C> <C>
Goldman, Sachs & Co..............................
[Names of Co-Representatives]....................
[Names of Underwriters]..........................
Total....................................... -------------------- --------------------
</TABLE>
I-4
<PAGE>
SCHEDULE II
Designated Trust:
Sempra Energy Capital Trust [I] [II] [III]
Title of Designated Securities:
.% Cumulative Quarterly Income Preferred Securities, Series (QUIPS/(SM)/)
Aggregate liquidation amount:
Firm Designated Securities: $.
Optional Designated Securities: [up to a minimum of $.
[none]
Price to public:
$. per Designated Security or .% of the liquidation amount of the
Designated Securities
Purchase price to Underwriters:
$. per Designated Security or .% of the liquidation amount of the
Designated Securities
Underwriters' compensation:
As compensation to the Underwriters for their commitments hereunder, and in
view of the fact that the proceeds of the sale of the Designated Securities
will be used by the Designated Trust to purchase the Subordinated
Debentures of the Company, the Company hereby agrees to pay at each Time of
Delivery to [the Representatives], for the accounts of the several
Underwriters, an amount equal to $. per Designated Security for the
Designated Securities to be delivered at each Time of Delivery.
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
.a.m. (New York City time), ., 2000
Trust Agreement:
Amended and Restated Declaration of Trust dated as of ., 2000 among the
Company, as Depositor, ., as Property Trustee, ., as Delaware Trustee, the
Regular Trustees named therein and the several Holders of Trust Securities
I-5
<PAGE>
Designated Guarantee:
Preferred Securities Guarantee Agreement dated as of ., 2000 between the
Company and ., as Trustee
Designated Subordinated Debentures:
[$. aggregate principal amount of .% Subordinated Deferrable Interest
Debentures, Series., due.]
Maturity:
.[(subject to (i) extension to a date not later than . and (ii)
shortening to a date not earlier than .)]
Interest Rate:
.%
Interest Payment Dates:
., ., . and . of each year, commencing on .
Extension period:
[. quarters] [. semi-annual periods]
Redemption provisions:
[Set forth in Section . of the Trust Agreement]
Sinking fund provisions:
No sinking fund provisions
Exchange for Designated Securities:
[The Subordinated Debentures may be delivered in exchange for the
Designated Securities as provided in the Trust Agreement]
Closing location for delivery of Designated Securities:
.
Names and addresses of Representatives:
Designated Representatives:
I-6
<PAGE>
Address for Notices, etc.:
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
[Other Terms]:
I-7
<PAGE>
ANNEX II
Pursuant to Section 7(h) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information) by
them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the related rules and regulations; and, if applicable, they
have made a review in accordance with standards established by the American
Institute of Certified Public Accountants of the consolidated interim
financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representative or representatives of the
Underwriters (the "Representatives") such term to include an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives and are attached to such letters;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited statements of consolidated income, consolidated balance
sheets and condensed statements of consolidated cash flows included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference into the
Prospectus as indicated in their reports thereon copies of which are
attached to such letters; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year agrees with the
corresponding amounts (after restatement where applicable) in the audited
consolidated financial statements for five such fiscal years included or
II-1
<PAGE>
incorporated by reference in the Company's Annual Reports on Form 10-K for
such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited statements of consolidated income,
consolidated balance sheets and condensed statements of consolidated
cash flows included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act and the published rules and regulations adopted by
the Commission, or (ii) any material modifications should be made to
the unaudited statements of consolidated income, consolidated balance
sheets and condensed statements of consolidated cash flows included in
the Company's Quarterly Reports on Form 10-Q incorporated by reference
in the Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial statements
from which such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially consistent
with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
II-2
<PAGE>
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
adopted by the Commission thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation
of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest balance
sheet included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated current assets or
shareholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated revenues or income before interest and income taxes or
the total or per share amounts of consolidated net income or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Representatives which are derived
from the general accounting records of the Company and its subsidiaries,
which appear in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
II-3
<PAGE>
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at each Time of Delivery for such Designated
Securities.
II-4
<PAGE>
ANNEX III
III-1
<PAGE>
EXHIBIT 1.2
Pricing Agreement
-----------------
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Charles Schwab & Co., Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
On behalf of each of the Underwriters
c/o Goldman, Sachs & Co.,
85 Broad Street
New York, New York 10004
February 16, 2000
Ladies and Gentlemen:
Sempra Energy Capital Trust I, a statutory business trust created under the
Business Trust Act of the State of Delaware (Chapter 38, Title 12, of the
Delaware Code, 12 Del. C. ((S)) 3801 et seq.) (the "Designated Trust"), and
------
Sempra Energy, a California corporation (the "Company"), as sponsor of the
Designated Trust and as guarantor, propose, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated February 16, 2000 (the
"Underwriting Agreement") between the Designated Trust and the Company on the
one hand and Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc.,
Charles Schwab & Co., Inc., PaineWebber Incorporated and Prudential Securities
Incorporated on the other hand, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in Schedule II
hereto (the "Designated Securities"). The principal asset of the Designated
Trust consists of debt securities of the Company ("Subordinated Debentures"), as
specified in Schedule II to this Agreement. The Designated Securities will be
guaranteed by the Company to the extent set forth in the Designated Guarantee
with respect to such Designated Securities (the "Guarantee"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation and warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Pricing
Agreement in relation to the Prospectus as amended or supplemented relating to
the Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used
I-1
<PAGE>
herein as therein defined. The Representatives designated to act on behalf of
the Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address,
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Designated Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
I-2
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Designated Trust, the Company and for each of the
Representatives plus one for each counsel counterparts hereof, and upon
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters, on the one hand, and the Designated Trust and the
Company, on the other hand. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which
shall be submitted to the Designated Trust and the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
Sempra Energy
By: /s/ Charles A. McMonagle
--------------------------------------
Name: Charles A. McMonagle
Title: Vice President and Treasurer
Sempra Energy Capital Trust I
By: /s/ Charles A. McMonagle
--------------------------------------
Name: Charles A. McMonagle
Title: Regular Trustee
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Morgan Stanley & Co. Incorporated
Salomon Smith Barney Inc.
Charles Schwab & Co., Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
By: /s/ Goldman Sachs & Co.
---------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
I-3
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Number of Designated
Underwriter Securities to be Purchased
----------- -------------------------
<S> <C>
Goldman, Sachs & Co................................... 890,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated.... 885,000
Morgan Stanley & Co. Incorporated..................... 885,000
Salomon Smith Barney Inc.............................. 885,000
Charles Schwab & Co., Inc............................. 885,000
PaineWebber Incorporated.............................. 885,000
Prudential Securities Incorporated.................... 885,000
Banc of America Securities LLC........................ 80,000
Bear, Stearns & Co. Inc............................... 80,000
CIBC World Markets Corp............................... 80,000
Dain Rauscher Incorporated............................ 80,000
Deutsche Bank Securities Inc.......................... 80,000
Donaldson, Lufkin & Jenrette Securities Corporation... 80,000
A.G. Edwards & Sons, Inc.............................. 80,000
First Union Securities, Inc........................... 80,000
Lehman Brothers Inc................................... 80,000
Sutro & Co. Incorporated.............................. 80,000
Wachovia Securities, Inc.............................. 80,000
Advest, Inc........................................... 40,000
Robert W. Baird & Co. Incorporated.................... 40,000
J.C. Bradford & Co.................................... 40,000
Crowell, Weedon & Co.................................. 40,000
Fahnestock & Co. Inc.................................. 40,000
Fifth Third Securities, Inc........................... 40,000
First Security Van Kasper............................. 40,000
Gruntal & Co., L.L.C.................................. 40,000
J.J.B. Hilliard, W.L. Lyons, Inc...................... 40,000
Janney Montgomery Scott LLC........................... 40,000
Legg Mason Wood Walker, Incorporated.................. 40,000
McDonald Investments Inc., a KeyCorp Company.......... 40,000
McGinn, Smith & Co., Inc.............................. 40,000
Morgan Keegan & Company, Inc.......................... 40,000
Olde Discount Corporation............................. 40,000
Raymond James & Associates, Inc....................... 40,000
Redwood Securities Group, Inc......................... 40,000
The Robinson-Humphrey Company, LLC.................... 40,000
Muriel Siebert & Co., Inc............................. 40,000
TD Securities (USA) Inc............................... 40,000
Tucker Anthony Incorporated........................... 40,000
U.S. Bancorp Piper Jaffray Inc........................ 40,000
Wedbush Morgan Securities Inc......................... 40,000
---------
Total............................................ 8,000,000
=========
</TABLE>
I-4
<PAGE>
SCHEDULE II
Designated Trust:
Sempra Energy Capital Trust I
Title of Designated Securities:
8.90% Cumulative Quarterly Income Preferred Securities, Series A (QUIPSSM)
Aggregate liquidation amount:
Designated Securities: $200,000,000
Price to public:
$25.00 per Designated Security or 100% of the liquidation amount of the
Designated Securities
Purchase price to Underwriters:
$25.00 per Designated Security or 100% of the liquidation amount of the
Designated Securities
Underwriters' compensation:
As compensation to the Underwriters for their commitments hereunder, and in
view of the fact that the proceeds of the sale of the Designated Securities
will be used by the Designated Trust to purchase the Subordinated
Debentures of the Company, the Company hereby agrees to pay at the Time of
Delivery to the Representatives, for the accounts of the several
Underwriters, an amount equal to $0.7875 per Designated Security for the
Designated Securities to be delivered at each Time of Delivery.
Specified funds for payment of purchase price:
Federal (same day) funds
Time of Delivery:
10:00 a.m. (New York City time), February 23, 2000
Trust Agreement:
Amended and Restated Declaration of Trust dated as of February 23, 2000
among the Company, as Sponsor, The Bank of New York, as Property Trustee,
The Bank of New York (Delaware), as Delaware Trustee, the Regular Trustees
named therein and the several Holders of Trust Securities
II-1
<PAGE>
Designated Guarantee:
Preferred Securities Guarantee Agreement dated as of February 23, 2000
between the Company and The Bank of New York, as Guarantee Trustee
Designated Subordinated Debentures:
$206,185,567 aggregate principal amount of 8.90% Subordinated Deferrable
Interest Debentures, Series A, due February 23, 2030
Maturity:
February 23, 2030 (subject to (i) extension to a date not later than
February 23, 2049 and (ii) shortening to a date not earlier than February
23, 2015)
Interest Rate:
8.90%
Interest Payment Dates:
March 31, June 30, September 30 and December 31 of each year, commencing on
March 31, 2000
Extension period:
20 consecutive quarterly periods
Redemption provisions:
Set forth in Section 5.2 of the Trust Agreement
Sinking fund provisions:
No sinking fund provisions
Exchange for Designated Securities:
The Subordinated Debentures may be delivered in exchange for the Designated
Securities as provided in the Trust Agreement
Closing location for delivery of Designated Securities:
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, CA 90071
II-2
<PAGE>
Names and addresses of Representatives:
Designated Representatives:
Goldman, Sachs & Co
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co., Incorporated
Salomon Smith Barney Inc.
Charles Schwab & Co., Inc.
PaineWebber Incorporated
Prudential Securities Incorporated
Address for Notices, etc.:
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
II-3
<PAGE>
EXHIBIT 4.1
SEMPRA ENERGY
TO
The Bank of New York
Trustee
____________________________________________
Form of Subordinated Indenture
Dated as of February ___, 2000
____________________________________________
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310
THROUGH 318, INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------- -----------------
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
- -------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
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TABLE OF CONTENTS
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Parties......................................................................................1
Recitals of the Corporation..................................................................1
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...........................1
Section 101 Definitions.............................................................1
Section 102 Compliance Certificates and Opinions....................................7
Section 103 Form of Documents Delivered to Trustee..................................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...................................................30
Section 309 Cancellation............................................................31
Section 310 Computation of Interest.................................................31
Section 311 CUSIP Numbers...........................................................31
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ii
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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..........................................39
Section 511 Delay or Omission Not Waiver............................................40
Section 512 Control By Holders......................................................40
Section 513 Waiver of Past Defaults.................................................40
Section 514 Undertaking for Costs...................................................41
Section 515 Waiver of Stay or Extension Laws........................................41
ARTICLE VI. THE TRUSTEE......................................................................41
Section 601 Certain Duties and Responsibilities.....................................41
Section 602 Notice of Defaults......................................................42
Section 603 Certain Rights of Trustee...............................................42
Section 604 Not Responsible for Recitals or Issuance of Securities..................43
Section 605 May Hold Securities.....................................................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.......................45
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...................48
Section 614 Appointment of Authenticating Agent.....................................48
Section 615 Trustee's Application for Instructions from the Corporation.............50
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iii
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ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION...........................50
Section 701 Corporation to Furnish Trustee Names and Addresses of Holders...........50
Section 702 Preservation of Information; Communications to Holders..................51
Section 703 Reports by Trustee......................................................51
Section 704 Reports by Corporation..................................................51
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..................................52
Section 801 Corporation May Consolidate, Etc., on Certain Terms.....................52
Section 802 Successor Substituted...................................................53
ARTICLE IX. SUPPLEMENTAL INDENTURES..........................................................53
Section 901 Supplemental Indentures Without Consent of Holders......................53
Section 902 Supplemental Indentures With Consent of Holders.........................54
Section 903 Execution of Supplemental Indentures....................................56
Section 904 Effect of Supplemental Indentures.......................................56
Section 905 Conformity with Trust Indenture Act.....................................56
Section 906 Reference in Securities to Supplemental Indentures......................56
Section 907 Subordination Unimpaired................................................56
ARTICLE X. COVENANTS.........................................................................57
Section 1001 Payment of Principal, Premium and Interest..............................57
Section 1002 Maintenance of Office or Agency.........................................57
Section 1003 Money for Securities Payments to Be Held in Trust.......................57
Section 1004 Corporate Existence.....................................................59
Section 1005 Statement by Officers as to Default.....................................59
Section 1006 Waiver of Certain Covenants.............................................59
ARTICLE XI. REDEMPTION OF SECURITIES.........................................................59
Section 1101 Applicability of Article................................................59
Section 1102 Election to Redeem; Notice to Trustee...................................60
Section 1103 Selection by Trustee of Securities to Be Redeemed.......................60
Section 1104 Notice of Redemption....................................................61
Section 1105 Securities Payable on Redemption Date...................................62
Section 1106 Securities Redeemed in Part.............................................62
ARTICLE XII. SINKING FUNDS...................................................................62
Section 1201 Applicability of Article................................................62
Section 1202 Satisfaction of Sinking Fund Payments with Securities...................63
Section 1203 Redemption of Securities for Sinking Fund...............................63
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE.............................................64
Section 1301 Applicability of Article................................................64
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iv
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Section 1302 Defeasance and Discharge................................................64
Section 1303 Covenant Defeasance.....................................................64
Section 1304 Conditions to Defeasance or Covenant Defeasance.........................65
Section 1305 Deposited Money and Government Obligations to Be Held
in Trust; Miscellaneous Provisions......................................67
Section 1306 Reinstatement...........................................................67
Section 1307 Effect on Subordination Provisions......................................68
ARTICLE XIV. SUBORDINATION...................................................................68
Section 1401 Securities Subordinated to Senior Indebtedness..........................68
Section 1402 Disputes with Holders of Certain Senior Indebtedness....................70
Section 1403 Subrogation.............................................................71
Section 1404 Obligation of Corporation Unconditional.................................71
Section 1405 Payments on Securities Permitted........................................72
Section 1406 Effectuation of Subordination by Trustee................................72
Section 1407 Knowledge of Trustee....................................................72
Section 1408 Trustee May Hold Senior Indebtedness....................................73
Section 1409 Rights of Holders of Senior Indebtedness Not Impaired...................73
Section 1410 Trust Moneys Not Subordinated...........................................73
Section 1411 Article Applicable to Paying Agents.....................................74
Section 1412 Trustee; Compensation Not Prejudiced....................................74
ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS........................................................74
Section 1501 Indenture and Securities Solely Corporate Obligations...................74
Testimonium..................................................................................65
Signatures...................................................................................65
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v
<PAGE>
INDENTURE, dated as of February ___, 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
(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.
<PAGE>
"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 request or order
signed in the name of the Corporation by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to a Responsible Officer of
the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 101 Barclay Street, Floor 21 --
West, New York, New York 10286.
"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.
<PAGE>
"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 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
<PAGE>
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 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
<PAGE>
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 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.
"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.
<PAGE>
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any assistant vice
president , any senior trust officer, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"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 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.
<PAGE>
"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 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.
<PAGE>
Any certificate or opinion of an officer of the Corporation may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
Officers' Certificate, Opinion of Counsel or other document or instrument, a
clerical, typographical or other inadvertent or unintentional error or omission
shall be discovered therein, a new document or instrument may be substituted
therefor in corrected form with the same force and effect as if originally filed
in the corrected form and, irrespective of the date or dates of the actual
execution and/or delivery thereof, such substitute document or instrument shall
be deemed to have been executed and/or delivered as of the date or dates
required with respect to the document or instrument for which it is substituted.
Anything in this Indenture to the contrary notwithstanding, if any such
corrective document or instrument indicates that action has been taken by or at
the request of the Corporation which could not have been taken had the original
document or instrument not contained such error or omission, the action so taken
shall not be invalidated or otherwise rendered ineffective but shall be and
remain in full force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the generality of
the foregoing, any Securities issued under the authority of such defective
document or instrument shall nevertheless be the valid obligations of the
Corporation entitled to the benefits of this Indenture equally and ratably with
all other Outstanding Securities, except as aforesaid.
Section 104. Acts of Holders; Record Dates.
-----------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Corporation.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient
<PAGE>
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.
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
<PAGE>
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,
(1) the Trustee by any Holder or by the Corporation shall be
sufficient for every purpose hereunder if in writing, which may be made via
facsimile, to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
<PAGE>
(2) the Corporation by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing, 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.
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.
<PAGE>
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 with respect to the series
of Securities established pursuant to such Officers' Certificate, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Corporation and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
<PAGE>
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 (an "Interest Payment Date"), commencing
_______________, at the rate of ____% per annum, until the principal hereof is
paid or made available for payment [if applicable, insert - , provided that any
principal 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 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
<PAGE>
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 New York City, 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.
Dated at Date of Authentication: SEMPRA ENERGY
By_____________________________
<PAGE>
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 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.]
[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
<PAGE>
election of the Corporation, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12- month
period beginning ________ of the years indicated,
<TABLE>
<CAPTION>
<S> <C> <C>
Redemption Price for Redemption Price for
Redemption Through Operation Redemption Otherwise Than
of the Through Operation of the
Year Sinking Fund Sinking Fund
---- ---------------------------- -----------------------------
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
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 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.]
<PAGE>
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The indebtedness represented by the Securities of this series is, to the
extent and in a manner set forth in the Indenture, expressly subordinated in
right of payment to the prior payment in full of all Senior Indebtedness, as
defined in the Indenture, with respect to this series, and this Security is
issued subject to such provisions, and each Holder of this Security, by
acceptance thereof, agrees to and shall be bound by such provisions and
authorizes and directs the Trustee in his, her or its behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in the Indenture and appoints the Trustee his, her or its attorney-in-fact, as
the case may be, for any and all such purposes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of 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 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.
<PAGE>
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 and 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.
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.
<PAGE>
This Security shall be governed by and construed in accordance with the
laws of the State of New York.
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
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
<PAGE>
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;
(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,
<PAGE>
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 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
<PAGE>
(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 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
<PAGE>
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,
(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
<PAGE>
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 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.
<PAGE>
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 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
<PAGE>
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, 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
<PAGE>
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.
(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
<PAGE>
may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Corporation or the Trustee that
such Security has been acquired by a bona fide purchaser, the Corporation shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax, fee, assessment or
other governmental charge that may be imposed in relation thereto and any other
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
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
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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;
(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 parties 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
<PAGE>
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, an
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
(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
<PAGE>
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
(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),
<PAGE>
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 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
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of or 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.
---------------------------------------------------------------
<PAGE>
The Corporation covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 60 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Corporation will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest,
at the rate or rates prescribed therefor in such Securities, 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 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
<PAGE>
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 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;
<PAGE>
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; 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.
<PAGE>
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Corporation, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control By Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of
other Holders of Securities of that series not joining in that action.
<PAGE>
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 the
Indenture shall have occurred and be continuing (voting as one class) may, on
behalf of the Holders of Securities of all such series, waive such past default
under the Indenture and its consequences, except a default
(1) in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Security of 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 such 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 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
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.
<PAGE>
ARTICLE VI.
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. 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.
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)
<PAGE>
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. 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 reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, at reasonable times previously notified to the
Corporation, to examine the relevant books, records and premises of the
Corporation, personally or by agent or attorney;
(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
<PAGE>
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);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to fully indemnify the Trustee for, and to hold it harmless
against, any and all loss, damage, claim, liability or expense including
taxes (other than taxes based on the income of the Trustee) incurred
without negligence, willful misconduct or bad faith on its part, arising
out of or in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee shall have a 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.
<PAGE>
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Corporation. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Corporation, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
<PAGE>
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 Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Corporation and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Corporation. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Corporation or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Corporation shall give notice of each resignation and each removal of
the Trustee with
<PAGE>
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
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.
<PAGE>
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).
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
<PAGE>
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided that such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Corporation and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Corporation agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: The Bank of New York,
As Trustee
By:
------------------------------------------
As Authenticating Agent
By:
------------------------------------------
Authorized Signatory
<PAGE>
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
(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
<PAGE>
of them shall be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture, deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Corporation. The
Corporation will promptly notify the Trustee when any Securities are listed on
any stock exchange.
Section 704. Reports by Corporation.
----------------------
The Corporation, 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 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.
<PAGE>
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 with or merge 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 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 or 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
<PAGE>
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
(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
<PAGE>
(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,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security or any other Security which would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or change 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
<PAGE>
(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 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.
--------------------------------------------------
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
circulation in the Borough of Manhattan, The City of New York, New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the
Corporation.
Section 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Corporation will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises.
Section 1005. Statement by Officers as to Default.
-----------------------------------
The Corporation will deliver to the Trustee, on or before October 15 of
each calendar year or on or before such other day in each calendar year as the
Corporation and the Trustee may from time to time agree upon, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Corporation is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Corporation
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 1006. Waiver of Certain Covenants.
---------------------------
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Corporation may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(19) 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 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.
-------------------------------------
<PAGE>
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.
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.
--------------------
<PAGE>
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series and of a
specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series and
of a specified tenor consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) the CUSIP number of such Securities, if any, or any other numbers
used by the Depositary to identify such securities, and 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
<PAGE>
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.
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.
-----------------------------------------------------
<PAGE>
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.
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.
<PAGE>
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 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:
<PAGE>
(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, 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. 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) above and held
by such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
Government Obligation which is so specified and held, provided that (except
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the Government Obligation or
the specific payment of principal or interest evidenced by such depositary
receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 501(5) and (6), at
any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until
after such 90th day).
(3) If the Securities are to be redeemed prior to Stated Maturity
(other than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this
Indenture or 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.
<PAGE>
(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.
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.
<PAGE>
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.
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
<PAGE>
and the payment of the principal of and any premium or interest on each and all
of the Securities of each series is subordinate, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of all
Senior Indebtedness. Senior Indebtedness shall continue to be Senior
Indebtedness and entitled to the benefits of these subordination provisions
irrespective of any amendment, modification or waiver of any term of the Senior
Indebtedness or extension or renewal of the Senior Indebtedness.
In the event (a) of any payment by, or distribution of assets of, the
Corporation of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, or (b) subject to the provisions of Section
1402 that (i) a default shall have occurred and be continuing with respect to
the payment of principal, interest or any other monetary amounts due and payable
on any Senior Indebtedness and such default shall have continued beyond the
period of grace, if any, specified in the instrument evidencing such Senior
Indebtedness (and the Trustee shall have received written notice thereof from
the Corporation or one or more holders of Senior Indebtedness or their
representative or representatives or the trustee or trustees under any indenture
pursuant to which any such Senior Indebtedness may have been issued), or (ii)
the maturity of any Senior Indebtedness shall have been accelerated because of a
default in respect of such Senior Indebtedness (and the Trustee shall have
received written notice thereof from the Corporation or one or more holders of
Senior Indebtedness or their representative or representatives or the trustee or
trustees under any indenture pursuant to which any such Senior Indebtedness may
have been issued), then:
(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
<PAGE>
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.
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.
----------------------------------------------------
<PAGE>
Any failure by the Corporation to make any payment on or perform any other
obligation under Senior Indebtedness, other than any indebtedness incurred by
the Corporation or assumed or guaranteed, directly or indirectly, by the
Corporation for money borrowed (or any deferral, renewal, extension or refunding
thereof) or any indebtedness or obligation as to which the provisions of this
Section shall have been waived by the Corporation in the instrument or
instruments by which the Corporation incurred, assumed, guaranteed or otherwise
created such indebtedness or obligation, shall not be deemed a default or event
of default under Section 1401(b) if (i) the Corporation shall be disputing its
obligation to make such payment or perform such obligation and (ii) either (A)
no final judgment relating to such dispute shall have been issued against the
Corporation which is in full force and effect and is not subject to further
review, including a judgment that has become final by reason of the expiration
of the time within which a party may seek further appeal or review, and (B) in
the event of a judgment that is subject to further review or appeal has been
issued, the Corporation shall in good faith be prosecuting an appeal or other
proceeding for review and a stay of execution shall have been obtained pending
such appeal or review.
Section 1403. Subrogation.
-----------
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated (equally and ratably with the holders of all
obligations of the Corporation which by their express terms are subordinated to
Senior Indebtedness of the Corporation to the same extent as the Securities are
subordinated and which are entitled to like rights of subrogation) to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Corporation applicable to the Senior
Indebtedness until all amounts owing on the Securities shall be paid in full,
and as between the Corporation, its creditors other than holders of such Senior
Indebtedness and the Holders, no such payment or distribution made to the
holders of Senior Indebtedness by virtue of this Article that otherwise would
have been made to the Holders shall be deemed to be a payment by the Corporation
on account of such Senior Indebtedness, it being understood that the provisions
of 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.
<PAGE>
Upon payment or distribution of assets of the Corporation referred to in
this Article, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any such
dissolution, winding-up, liquidation or reorganization proceeding affecting the
affairs of the Corporation is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee
or agent or other person making any payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Corporation, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee or
representative on behalf of any such holder or holders. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and, if
such evidence is not furnished, the Trustee may defer payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 1405. Payments on Securities Permitted.
--------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities shall affect the obligations of the Corporation to make, or prevent
the Corporation from making, 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
<PAGE>
and until the Trustee shall have received written notice thereof mailed or
delivered to the Trustee at its Corporate Trust Office from the Corporation, any
Holder, any paying agent or the holder or representative of any Senior
Indebtedness; provided that if at least two Business Days prior to the date upon
which by the terms hereof any such moneys may become payable for any purpose
(including, without limitation, the payment of the principal or any premium or
interest on any Security) the Trustee shall not have received with respect to
such moneys the notice provided for in this Section, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such moneys and to apply the same to the purpose for which
they were received and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to or on or after such
date.
Section 1408. Trustee May Hold Senior Indebtedness.
------------------------------------
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness at the time
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
Section 1409. Rights of Holders of Senior Indebtedness Not Impaired.
-----------------------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Corporation or by
any noncompliance by the Corporation with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (i) the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture; (ii) the Trustee 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.
-----------------------------------
<PAGE>
In case at any time any paying agent other than the Trustee shall have been
appointed by the Corporation and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such paying agent within its
meaning as fully for all intents and purposes as if such paying agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1407 and 1408 shall not apply to the Corporation if it acts as its
own paying agent.
Section 1412. Trustee; Compensation Not Prejudiced.
------------------------------------
Nothing in this Article shall apply to claims of, or payments to, the
Trustee pursuant to Section 607.
ARTICLE XV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
Section 1501. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
* * * *
<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
----------------------------------------
Name: Charles A. McMonagle
Title: Vice President and Treasurer
Attest:
- -------------------------
The Bank of New York,
as Trustee
By
----------------------------------------
Authorized Signatory
Attest:
- -------------------------
<PAGE>
EXHIBIT 4.2
Sempra Energy
FORM OF OFFICERS' CERTIFICATE
(Pursuant to Sections 201 and 301 of the Subordinated Indenture)
Dated: February 23, 2000
Sempra Energy Capital Trust I, a Delaware statutory business trust
(the "Trust"), has offered to the public $200,000,000 aggregate liquidation
amount of its 8.90% Cumulative Quarterly Income Preferred Securities, Series A
(the "Preferred Securities"), representing undivided beneficial interests in the
assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of $6,186,000 aggregate liquidation amount of its Common Securities (the "Common
Securities" and, together with the Preferred Securities, the "Trust
Securities"), in $206,186,000 aggregate principal amount of the Notes referred
to below issued under the Indenture (as defined below). The Trust Securities
will be issued pursuant to the terms of an Amended and Restated Declaration of
Trust of the Trust, dated as of February 23, 2000 (the "Declaration"), among the
Regular Trustees (as defined therein) (the "Regular Trustees"), the Delaware
Trustee (as defined therein) (the "Delaware Trustee"), the Property Trustee (as
defined therein) (the "Property Trustee"), Sempra Energy, a California
corporation (the "Company"), and the holders from time to time of the Trust
Securities.
The undersigned, Charles A. McMonagle, Vice President and Treasurer of
Sempra Energy, and Gary Kyle, Assistant Secretary of the Company, hereby certify
as follows:
The undersigned, having read the appropriate provisions of the
Subordinated Indenture dated as of February 23, 2000 (the "Indenture") between
the Company and The Bank of New York, as trustee (the "Trustee"), including
Sections 201, 301 and 303 thereof and the definitions in such Indenture relating
thereto, and certain other corporate documents and records, and having made such
examination and investigation as, in the opinion of the undersigned, each
considers necessary to enable the undersigned to express an informed opinion as
to whether or not the conditions set forth in the Indenture relating to the
establishment of the terms of the Company's 8.90% Subordinated Deferrable
Interest Notes, Series A, due February 23, 2030 (the "Notes") and the form of
certificate evidencing the Notes have been complied with, and whether the
conditions in the Indenture relating to the authentication and delivery by the
Trustee of the Notes have been complied with, certify that (1) the terms of the
Notes were established by the undersigned pursuant to authority delegated to
them by resolutions duly adopted by the Board of Directors of the Company on
April 6, 1999 and January 25, 2000 (the "Resolutions") and such terms are as set
forth in Annex I hereto, (2) the form of certificate evidencing the Notes was
established by the undersigned pursuant to authority delegated to them by the
Resolutions and shall be in substantially the form attached as Annex II hereto,
(3) a true, complete and correct copy of the Resolutions, which were duly
adopted by the Board of Directors of the Company and are in full force and
effect on the date hereof, are attached as an exhibit to the Certificate of the
Secretary of the Company of even date herewith, and (4) the form and terms of
the Notes have been established pursuant to Sections 201 and 301 of the
Indenture and comply with the Indenture and, in the opinion of the undersigned,
all conditions provided for in the Indenture (including, without limitation,
those set forth in Sections 201, 301 and 303 of the Indenture)
1
<PAGE>
relating to the establishment of the terms of the Notes and the form of
certificate evidencing the Notes, and relating to the execution, authentication
and delivery of the Notes, have been complied with.
This certificate may be executed by the parties hereto in
counterparts, each of which when so executed shall be deemed to be an original,
with the same effect as if the signatures thereto and hereto were on the same
instrument, but all such counterparts shall together constitute but one and the
same instrument.
Latham & Watkins and Brown & Wood llp are entitled to rely on this
certificate in connection with the respective opinions the firms are rendering
pursuant to the Underwriting Agreement.
(Signature Page Follows)
2
<PAGE>
IN WITNESS WHEREOF, we have hereunto set our hands as of the date
first written above.
_____________________________________
Charles A. McMonagle
Vice President and Treasurer
_____________________________________
Gary Kyle
Assistant Secretary
<PAGE>
ANNEX I
Capitalized terms used in this Annex I and not otherwise defined
herein have the same definitions as in the Indenture referred to in the
Officers' Certificate of which this Annex I constitutes a part.
(i) Title. The title of the series of Securities is the "8.90%
Subordinated Deferrable Interest Notes, Series A, due February 23, 2030" (the
"Notes").
(ii) Aggregate Principal Amount. The aggregate principal amount of the
Notes which may be authenticated and delivered pursuant to the Indenture (except
for Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 304, 305, 306, 906
and 1106 of the Indenture) is $206,186,000.
(iii) Registered Securities in Book-Entry Form. Except as provided in
paragraph (xxiii) below, the Notes will be issued in fully registered
certificated form without interest coupons. Pursuant to paragraph (xxiii) below,
the Notes may be issued in book-entry form ("Book-Entry Notes") and represented
by one or more global notes (the "Global Notes") in fully registered form,
without coupons. The initial Depositary with respect to the Global Notes will be
The Depository Trust Company, as Depositary for the accounts of its
participants. So long as the Depositary for a Global Note, or its nominee, is
the registered owner of the Global Note, the Depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Notes in book-
entry form represented by such Global Note for all purposes under the Indenture.
Book-Entry Notes will not be exchangeable for Notes in definitive form
("Definitive Notes") except that, if the Depositary with respect to any Global
Note or Notes is at any time unwilling or unable to continue as Depositary and a
successor Depositary is not appointed by the Company within 90 days, the Company
will issue Definitive Notes in exchange for the Book-Entry Notes represented by
any such Global Note or Notes. In addition, the Company may at any time and in
its sole discretion determine not to have a Global Note or Notes, and, in such
event, will issue Definitive Notes in exchange for the Book-Entry Notes
represented by such Global Note or Notes in accordance with the provisions of
Section 305 of the Indenture.
(iv) Persons to Whom Interest Payable. Interest will be payable to the
Person in whose name a Note is registered at the close of business (whether or
not a Business Day) on the Regular Record Date with respect to such Note.
(v) Stated Maturity. The principal amount of the Notes will be payable
on February 23, 2030, subject to earlier redemption as set forth in paragraph
(ix) below. The Company shall have the right to shorten or extend the Stated
Maturity of the principal of the Debentures to a date not earlier than February
23, 2015 or a date not later than February 23, 2049; provided, however, that the
shortened or extended date must fall on an Interest Payment Date; provided,
further, that the Company shall have the right to shorten or extend the Stated
Maturity only if the Company shall have received an
I-1
<PAGE>
Opinion of Counsel, experienced in the following matters to the effect that (i)
the Holders of the Notes and the holders of the Preferred Securities will not
recognize income, gain or loss for United States federal income tax purposes as
a result of the shortening or extension of the Stated Maturity and will be
subject to United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if the shortening or
extension of the Stated Maturity had not occurred, and (ii) the shortening or
extension of the Stated Maturity will not cause the Trust to be classified as
other than a grantor trust for United States federal income tax purposes;
provided, further, that the Company shall have the right to extend the Stated
Maturity only if (i) it is not in bankruptcy, insolvent or in liquidation; (ii)
it is not in default on the payment of interest or principal on the Notes; (iii)
the Trust is not in arrears on payments of Distributions on the Preferred
Securities; (iv) no deferred Distributions are accumulated on the Preferred
Securities; and (v) the Preferred Securities are rated at least BBB- by Standard
& Poor's Ratings Services or Baa3 by Moody's Investors Services, Inc., or an
equivalent rating by a successor rating agency.
(vi) Rate of Interest; Interest Payment Dates; Regular Record Dates;
Accrual of Interest. The Notes will bear interest at the rate of 8.90% per annum
(the "Coupon Rate"). Interest on the Notes will be payable quarterly in arrears
on March 31, June 30, September 30 and December 31 of each year (each, an
"Interest Payment Date"), commencing on March 31, 2000. In respect of any Notes
of which the Property Trustee is the registered holder or any Notes which are in
book-entry only form, the Regular Record Date shall be one Business Day before
the relevant Interest Payment Date. Notwithstanding the foregoing sentence, if
the Preferred Securities are no longer in book-entry only form or a Dissolution
Event has occurred and subsequent thereto the Notes are not represented by a
Global Note pursuant to the provisions of Section 305(4) of the Indenture, the
Regular Record Date will be the 15th day, whether or not a Business Day, before
the relevant payment date. The Notes will bear interest from February 23, 2000
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for until the principal thereof is paid or made available for
payment. Interest payments shall be the amount of interest accrued from and
including the most recent Interest Payment Date in respect of which interest has
been paid or duly provided for (or from and including February 23, 2000 if no
interest has been paid or duly provided for with respect to such Note), to but
excluding the next succeeding Interest Payment Date.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full quarterly period for which interest is computed, will be computed on the
basis of the actual number of days elapsed per 30-day month. In the event that
any date on which interest is payable on the Notes is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
I-2
<PAGE>
(vii) Additional Interest. If at any time while the Property Trustee is
the holder of any Notes, the Trust or the Property Trustee is required to pay
any taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other taxing
authority, then, in any such case, the Company will pay as additional interest
("Additional Interest") on the Notes held by the Property Trustee, such
additional amounts as shall be required so that the net amounts received and
retained by the Trust and the Property Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal to the amounts the Trust
and the Property Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
(viii) Place of Payment; Registration of Transfer and Exchange; Notices to
Company. The Borough of Manhattan, the City of New York is hereby designated as
a Place of Payment for the Notes. The Company hereby appoints the Trustee,
acting through its agency, the Bank of New York, in the Borough of Manhattan,
the City of New York designated from time to time for such purpose, as the
Company's agent for the purposes specified in Section 1002 of the Indenture;
provided, however, that in the Company's discretion it may appoint one or more
additional paying agents and security registrars and designate one or more
additional places for payment and for registration and transfer, but it must at
all times maintain a place of payment of the Notes and a place of registration
of transfer of the Notes in the Borough of Manhattan, the City of New York.
(ix) Redemption. The Notes are not entitled to any mandatory redemption
or sinking fund payments.
(a) Optional Redemption:
The Notes will be redeemable, in whole or from time to time in part, at
the option of the Company at any time on or after February 23, 2005 at a
redemption price equal to 100% of the principal amount per Note to be redeemed
plus, in each case, accrued and unpaid interest thereon to the Redemption Date
(the "Redemption Price"), provided that no partial redemption may occur during a
Deferral Period (as defined below).
(b) Special Event Redemption:
If, at any time, a Tax Event or an Investment Company Event (each as
defined below, and each a "Special Event") shall occur and be continuing, the
Company shall have the right to redeem the Notes in whole or in part, for cash
within 90 days following the occurrence of such Special Event, at the Redemption
Price.
i. "Investment Company Event" means that the Trust shall have
received an opinion of counsel experienced in practice under the Investment
Company Act that, as a result of the occurrence of a change in law or regulation
or a written change in interpretation or application of law or regulation, by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), there is more than an insubstantial risk that the
Trust is or will
I-3
<PAGE>
be considered an investment company which is required to be registered under the
Investment Company Act of 1940, as amended, which Change in 1940 Act Law becomes
effective on or after February 16, 2000.
ii. "Tax Event" means that the Trust shall have received an
opinion of counsel experienced in such matters to the effect that on or after
February 16, 2000, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, or (b) any official or administrative pronouncement or judicial
decision, interpreting or applying such laws or regulations, whether or not the
pronouncement or decision is issued to or in connection with a proceeding
involving the Company or the Trust or is subject to review or appeal, where such
change or amendment becomes effective, or such pronouncement, action or decision
is announced or occurs, in each case on or after February 16, 2000, there is
more than an insubstantial risk that (i) the Trust is or will be within 90 days
of the date of such opinion, subject to United States federal income tax with
respect to interest accrued or received on the Notes, (ii) the Trust is, or will
be within 90 days of the date of such opinion, subject to more than a minimal
amount of other taxes, duties, assessments or other governmental charges, or
(iii) interest payable by the Company to the Trust on the Notes or original
issue discount accruing on the Notes is not, or within 90 days of the date of
such opinion will not be, deductible, in whole or in part, by the Company for
United States federal income tax purposes.
(c) Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of the Notes to be
redeemed. Unless the Company defaults in payment of the Redemption Price, on and
after the redemption date, interest will cease to accrue on the Notes or
portions thereof called for redemption. If less than all of the Notes are to be
redeemed, the Notes (or portions thereof) to be redeemed shall be selected by
the Trustee by such method as the Trustee shall deem fair and appropriate,
provided that if, at the time of redemption, the Notes are registered as a
Global Note, the Depositary shall determine the principal amount of such Notes
held by each holder to be redeemed in accordance with its procedures.
(d) If a partial redemption of the Notes would result in the delisting
of the Preferred Securities from any national securities exchange or other
organization on which the Preferred Securities are then listed, the Company
shall not be permitted to effect such partial redemption and may only redeem the
Notes in whole.
(x) Extension of Interest Payment Period.
(a) Right to Extend. The Company shall have the right, at any time, and
from time to time, during the term of the Notes to extend the interest payment
period of such Notes for up to 20 consecutive quarterly periods (an "Extended
Interest Payment Period"), provided no Event of Default has occurred and is
continuing with respect to the Notes. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this
I-4
<PAGE>
paragraph, will bear interest thereon at the Coupon Rate for each quarterly
period of the Extended Interest Payment Period. At the end of the Extended
Interest Payment Period, the Company shall pay all interest accrued and unpaid
on the Notes including any Additional Interest ("Deferred Interest") which shall
be payable to the holders of the Notes in whose names the Notes are registered
in the Security Register on the first Regular Record Date after the end of the
Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarterly periods. Upon the termination of any Extended
Interest Payment Period and upon the payment of all Deferred Interest then due,
the Company may select a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof.
(b) Notice of Extension.
i. If the Property Trustee is the only registered holder of the
Notes at the time the Company selects an Extended Interest Payment Period, the
Company shall give written notice to the Trustee, the Regular Trustees and the
Property Trustee of its selection of such Extended Interest Payment Period one
Business Day before the earlier of (i) the next succeeding date on which
Distributions on the Trust Securities are payable or (ii) the date the Trust is
required to give notice of the record date or the date such Distributions are
payable to the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Preferred Securities, but in any event at
least one Business Day before such record date.
ii. If the Property Trustee is not the only holder of the Notes
at the time the Company selects an Extended Interest Payment Period, the Company
shall give the holders of the Notes written notice of its selection of such
Extended Interest Payment Period ten Business Days before the earlier of (i) the
next succeeding Interest Payment Date or (ii) the date the Company is required
to give notice of the record or payment date of such interest payment to the New
York Stock Exchange or other applicable self-regulatory organization or to
holders of the Notes.
iii. The quarterly period in which any notice is given pursuant
to paragraphs (a) or (b) of this subparagraph (ii) shall be counted as one of
the 20 quarterly periods permitted in the maximum Extended Interest Payment
Period permitted under this paragraph (x).
(xi) Limitation of Transactions. If Notes are issued to the Trust or a
trustee of the Trust and (i) there shall have occurred any event that would
constitute an Event of Default or (ii) the Company shall be in default with
respect of its payment or other obligations under the Preferred Securities
Guarantee Agreement, dated as of February 23, 2000, between the Company and The
Bank of New York or (iii) the Company shall have given notice of its election to
defer payments of interest on the Notes by extending the
I-5
<PAGE>
interest payment period as provided in paragraph (x) above, then (a) the Company
will not declare or pay any dividend on, or make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock, (b) the Company will not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company which rank pari passu with or junior to the Notes and
(c) make any payments under any of the Company's guarantees if such guarantee
ranks equally with or junior to the Notes and guarantees payments of any debt
security of any of the Company's subsidiaries; provided, that, clause (a) above
does not apply to (i) any stock dividends in, or any payment in, shares of
common stock of the Company, (ii) purchases or acquisitions by the Company of
shares of its common stock in connection with the satisfaction by the Company of
its obligations under any benefit plans for directors, officers or employees,
(iii) any declaration by the Company of a dividend in connection with the
implementation or extension of a stockholders' rights plan, or the issuance of
stock under any such plan (including any such existing plan) in the future or
the redemption or repurchase of any such rights pursuant thereto or (iv) any
payment under the QUIPS Guarantee or any other preferred securities guarantee
(as described under "Description of the Series A QUIPS-Status of the Series A
QUIPS Guarantees" in the Company's Prospectus Supplement dated February 16, 2000
and under "Description of Preferred Securities Guarantees" in the Company's
Prospectus dated May 18, 1999).
(xii) Denominations. The Notes are issuable in denominations of $25 and
integral multiples thereof.
(xiii) Agreement to Subordinate. The Company covenants and agrees, and
each holder of Notes issued hereunder by such holder's acceptance thereof
likewise covenants and agrees, that all Notes shall be issued subject to the
provisions of Article FOURTEEN of the Indenture; and each holder of a Note,
whether upon original issue or upon transfer or assignment thereof, accepts and
agrees to be bound by such provisions.
(xiv) Security Register; Paying Agent. The Security Register for the
Notes will be initially maintained at the Corporate Trust Office of the Trustee.
The Company hereby appoints the Trustee as the initial Paying Agent.
(xv) Covenants as to the Trust. For so long as the Trust Securities
remain outstanding, the Company will (i) maintain 100% direct or indirect
ownership of the Common Securities of the Trust; provided, however, that any
permitted successor of the Company under the Indenture may succeed to the
Company's ownership of the Common Securities and (ii) use its reasonable efforts
to cause the Trust (A) to remain a statutory business trust, except in
connection with a distribution of Notes as provided in the Declaration the
redemption of all of the Trust Securities or certain mergers, consolidations or
amalgamations permitted by the Declaration, and (B) to continue to be treated as
a grantor trust for United States federal income tax purposes.
(xvi) Events of Default. For the Notes only, a valid extension of the
interest payment period in accordance with paragraph (x) hereof shall not
constitute a Default or Event of Default under the Indenture.
I-6
<PAGE>
For the Notes only, the voluntary or involuntary dissolution, winding-
up or termination of the Trust, except in connection with (a) the distribution
of the Notes to the holders of the Trust Securities in liquidation of the Trust,
(b) the redemption of all the Trust Securities, or (c) mergers, consolidations
or amalgamations, each as permitted by the Declaration, shall constitute an
Event of Default.
(xvii) Waiver of Past Defaults. For the Notes only, any waiver pursuant to
Section 513 of the Indenture or any modification of such a waiver shall not be
effective until the holders of a majority in liquidation amount of Trust
Securities shall have consented to such waiver; provided, however, that if the
consent of the holder of each Outstanding Security is required, such waiver
shall not be effective until each holder of the Trust Securities shall have
consented to such waiver.
(xviii) Listing on Exchanges. If the Notes are to be issued as a Global
Note in connection with the distribution of the Notes to the holders of the
Preferred Securities upon a Dissolution Event, the Company will use its best
efforts to list such Notes on the New York Stock Exchange or on such other
exchange as the Preferred Securities are then listed.
(xix) Direct Action. The Company and the Trustee acknowledge that
pursuant to the Declaration, the holders of Preferred Securities are entitled,
in the circumstances and subject to the limitations set forth therein, to
commence a Direct Action (as defined therein) with respect to any Event of
Default under the Indenture.
(xx) Supplemental Indentures. For the Notes only, any supplemental
indenture referred to in Section 902 of the Indenture shall not be effective
until the holders of a majority in liquidation amount of Trust Securities shall
have consented to such supplemental indenture; provided, however, that if the
consent of the holder of each Outstanding Security is required, such
supplemental indenture shall not be effective until each holder of the Trust
Securities shall have consented to such supplemental indenture.
(xxi) Form. The Notes will be in substantially the form set forth in
Exhibit A attached hereto and may have such other terms as are provided in such
form.
(xxii) Payment of Expenses. In connection with the offering, sale and
issuance of the Notes to the Property Trustee in connection with the sale of the
Trust Securities by the Trust, and the operation of the Trust, the Company
shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Notes, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and Pricing Agreement, each dated
February 23, 2000 among the Company, the Trust and the underwriters named
therein and compensation of the Trustee under the Indenture in accordance with
the provisions of Section 607 of the Indenture;
(b) pay all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the offering,
sale and issuance of the Trust Securities (including commissions to the
underwriters in connection therewith), the fees and expenses of the trustees of
the Trust, the costs and expenses relating to the
I-7
<PAGE>
operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing and disposition of Trust assets); and
(c) pay any and all taxes (other than United States withholding taxes)
attributable to the Trust or its assets and all liabilities, costs and expenses
with respect to such taxes of the Trust.
(xxiii) Dissolution Event. "Dissolution Event" means that the Trust is to
be dissolved in accordance with the Declaration and the Notes held by the
Property Trustee are to be distributed to the holders of the Trust Securities
pro rata in accordance with the Declaration. In connection with a Dissolution
Event:
(a) Definitive Notes may be presented to the Trustee by the Property
Trustee in exchange for a Global Note in an aggregate principal amount equal to
all Definitive Notes Outstanding to be registered in the name of the Depositary,
or its nominee, and delivered by the Trustee to the Depositary for crediting to
the accounts of its participants pursuant to the instructions of the Regular
Trustees. The Company upon any such presentation shall execute a Global Note in
such aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture and this Officers'
Certificate. Payments on the Notes issued as a Global Note will be made to the
Depositary; and
(b) if any Preferred Securities are held in non book-entry certificated
form, Definitive Notes may be presented to the Trustee by the Property Trustee
and any Preferred Security Certificate which represents Preferred Securities
other than Preferred Securities held by the Depositary or its nominee
("Non Book-Entry Preferred Securities") will be deemed to represent beneficial
interests in Notes presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the Non
Book-Entry Preferred Securities until such Preferred Security Certificates are
presented to the Security Registrar for transfer or reissuance at which time
such Preferred Security Certificate will be cancelled and a Note registered in
the name of the holder of the Preferred Security Certificate or the transferee
of the holder of such Preferred Security Certificate as the case may be, with an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Security Certificate cancelled will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with the
Indenture and this Officers' Certificate. On issue of such Notes, Notes with an
equivalent aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been cancelled.
(xxiv) The Notes shall not be repayable or redeemable at the option of the
Holders prior to the Stated Maturity of the principal thereof (except as
provided in Article Five of the Indenture) and shall not be subject to a sinking
fund or analogous provision.
I-8
<PAGE>
(xxv) The principal of, premium, if any, and interest on the Notes shall
be payable in Dollars.
(xxvi) Section 1302 of the Indenture shall apply to the Notes, provided
that the Company may effect defeasance pursuant to Section 1302 only with
respect to all (and not less than all) of the Outstanding Notes. Covenant
Defeasance shall not apply to the Notes.
(xxvii) Anything in the Indenture or the Notes to the contrary
notwithstanding, payments of the principal of and premium, if any, and interest
on the Global Securities shall be made by wire transfer to the Depositary.
(xxviii) To the extent that any provision of the Indenture or the Notes
provides for the payment of interest on overdue principal of, or premium, if
any, or interest on, the Notes, then, to the extent permitted by law, interest
on such overdue principal, premium, if any, and interest shall accrue at the
rate of interest borne by the Notes.
(xxix) The Notes shall have such other terms and provisions as are (a) set
forth in the form of certificate evidencing the Notes attached as Annex II to
this Officers' Certificate, all of which terms and provisions are incorporated
by reference in and made a part of this Annex I as if set forth in full herein,
and (b) described under "Description of the Series A QUIDS in the Company's
Prospectus Supplement dated February 16, 2000 and under "Description of Debt
Securities" in the Company's Prospectus dated May 18, 1999 as if set forth in
full herein.
(xxx) As used in the Indenture with respect to the Notes and in the
certificates evidencing the Notes, all references to "premium" on the Notes
shall mean any amounts (other than accrued interest) payable upon the redemption
of any Notes in excess of 100% of the principal amount of such Notes.
I-9
<PAGE>
ANNEX II
--------
Form of Certificate Evidencing the Note
II-1
<PAGE>
Exhibit 4.3
__________________________________________
AMENDED AND RESTATED DECLARATION
OF TRUST
of
Sempra Energy Capital Trust I
Dated as of February __, 2000
__________________________________________
<PAGE>
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> <C>
(.)310 (a)(1).................................................................. 9.4
(a)(2).................................................................. 9.4
(a)(3).................................................................. 9.6
(a)(4).................................................................. 3.6
(b)..................................................................... 9.5
(.)311 (a)..................................................................... 9.10
(b)..................................................................... 9.10
(.)312 (a)..................................................................... 2.2
(b)..................................................................... 2.2
(c)..................................................................... 2.2
(.)313 (a)..................................................................... 2.3(a)
(a)(4).................................................................. 2.3(b)
(b)..................................................................... 2.3(b)
(c)..................................................................... 11.8
(d)..................................................................... 2.3(c)
(.)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
(.)315 (a)..................................................................... 3.6
(b)..................................................................... 2.7, 11.8
(c)..................................................................... 3.6
(d)..................................................................... 3.6
(e)..................................................................... Not Applicable
(.)316 (a)..................................................................... Not Applicable
(a)(1)(A)............................................................... Not Applicable
(a)(1)(B)............................................................... Not Applicable
(a)(2).................................................................. Not Applicable
(b)..................................................................... 2.6
(c)..................................................................... 7.7
(.)317 (a)(1).................................................................. Not Applicable
(a)(2).................................................................. Not Applicable
(b)..................................................................... 6.8
(.)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, certain of the Trustees and the Sponsor established the Trust
under the Business Trust Act (as defined herein) pursuant to a Declaration of
Trust, dated as of April 22, 1999 (the "Original Declaration") and a Certificate
of Trust filed with the Secretary of State of Delaware on April 22, 1999, for
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Subordinated Debt Securities (as defined herein) of
the Subordinated Debt Securities Issuer (as defined herein);
WHEREAS, 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 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.
"Additional Sums" has the meaning specified in Section ___ of the Officers'
Certificate establishing the terms of the Subordinated Debt Securities pursuant
to Section 303 of the Indenture.
"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
S-2
<PAGE>
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.
"Bank" means The Bank of New York, a New York banking corporation, other
than in its capacity as Property Trustee or a 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 Securities Certificates" means a beneficial interest
in the Preferred Securities 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, (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, or (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the
Subordinated Debt Securities Trustee is closed for business.
S-3
<PAGE>
"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.
"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
Annex II to 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.
S-4
<PAGE>
"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates issued as Book-Entry
Preferred Securities Certificates as provided in Section 6.10(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 6.12.
"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 trustee appointed as herein provided.
"Sponsor" has the meaning specified in the preamble to this Declaration.
"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 aggregate 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.
S-5
<PAGE>
"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 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 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.
S-6
<PAGE>
"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 the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of Preferred Securities or Common 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. The officer signing an Officer's Certificate given pursuant
to Section 2.14 shall be the principal executive, financial or accounting
officer of the Sponsor. 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:
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(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 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 Securities 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 non-interest-bearing 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.
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"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Annex I to Exhibit A.
"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.
"Redemption Date" means, with respect to any Trust 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 Trust Security, the
Liquidation Amount of such Trust 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 ___________, ___________ and ___________,
solely in such Person's capacity as Regular Trustee of the Trust formed and
continued hereunder 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 8.10.
"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
Securities Certificates have not been issued, the term Securityholders or
Holders as used herein shall refer to the Owners.
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"Sponsor" means Sempra Energy, a California corporation, or any permitted
successor thereof under the Indenture, in its capacity as sponsor of the Trust.
"Subordinated Debt Securities" means the 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. A specimen certificate for such series of
Subordinated Debt Securities is attached hereto as Exhibit B.
"Subordinated Debt Securities Issuer" means Sempra Energy, a California
corporation.
"Subordinated Debt Securities Trustee" means The Bank of New York, as
trustee under the Indenture until a successor is appointed thereunder and
thereafter means such successor trustee.
"Successor Property Trustee" means a successor Trustee possessing the
qualifications to act as Property Trustee under Section 9.4.
"Tax Event" means the receipt by the Trust of an Opinion of Counsel from
counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Declaration, 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 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 de minimis amount of other
taxes, duties, assessments or other governmental charges.
"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 provisions ereof, 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 17,
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 of
________, ________, _______ and ________ (each such date a "Regular 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 Regular Record Date, and (ii) at such other times as the
Property Trustee may request
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in writing, within 30 days after the receipt by the rust of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished. The Property Trustee shall preserve, in as current
a form as is reasonably practicable, all information contained in Lists of
Holders given to it or which it receives in its capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders; an d
(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 February 15 of each year, commencing February 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) In addition, the Property Trustee shall transmit to all Securityholders
in accordance with Section 11.8, and to the Sponsor, a brief report dated as of
such May 15 with respect to:
(i) its eligibility under Section 9.4 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects the
Securities.
(c) 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.
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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 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 aggregate
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;
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(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 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 aggregate 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
Securities 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
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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.
(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.
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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. The
Sponsor hereby appoints the Trustees as trustees of the Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Trustees
hereby accept such appointment. 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 and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;
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(iii) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, 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
Securities Exchange Act of 1934, as amended, and the preparation and
filing 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;
(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 determined by the Sponsor, the Property
Trustee or the Holders of Preferred Securities representing more than
50% of the aggregate Liquidation Amount of the Outstanding Preferred
Securities, or as otherwise required by the Delaware Business Trust
Act or the Trust Indenture Act, 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
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 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 1940 Act, (ii) the
Trust will be classified as a grantor trust for United States Federal income tax
purposes and (iii) so that 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,
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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;
(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
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);
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(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.
(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 Holders of at least 25% in aggregate
Liquidation Amount of the Preferred Securities may directly institute a
proceeding for enforcement of payment to such Holder of the principal of,
premium, if any, or interest on, the Subordinated Debt Securities having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such Holder (a "Direct Action"). Notwithstanding any payments
made to any Holders of Preferred Securities by the Subordinated Debt Securities
Issuer in connection with a Direct Action, the Subordinated Debt Securities
Issuer shall remain obligated to pay the principal of, premium, if any, or
interest on the Subordinated Debt Securities held by the Trust or the Property
Trustee of the Trust, and the Subordinated Debt Securities Issuer shall be
subrogated to the rights of the Holders of such Preferred Securities with
respect to payments on the Preferred Securities. Except as provided in the
preceding sentences and in the Preferred Securities Guarantee, the Holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Subordinated Debt Securities.
(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.
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(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.
(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:
(i) shall undertake to perform only such duties as are specifically
set forth in this Declaration and in the terms of the Securities, and no
implied covenants, duties or obligations shall be read into this
Declaration against the Property Trustee; and
(ii) in the absence of bad faith on the part of the Property Trustee,
the Property Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee and conforming
to the requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are specifically
required to be furnished to the Property Trustee, the Property Trustee
shall be under a duty to examine the same to determine whether or not they
conform to the requirements of this Declaration.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Property Trustee shall exercise such of the rights
and powers vested in it by this Declaration, and use the same degree of care and
skill in their exercise or use, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs;
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(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 3.1 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.
(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) if (i) in performing its duties under this Declaration the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions
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of this Declaration the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (iii) the Property
Trustee is unsure of the application of any provision of this Declaration, then,
except as to any matter as to which the Preferred Securityholders are entitled
to vote under the terms of this Declaration, the Property Trustee shall take
such action, or refrain from taking such action, not inconsistent with this
Declaration as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;
(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 (which
counsel may be counsel to the Sponsor or any of its Affiliates, and may include
any of its employees) and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice, such counsel may be counsel to the Sponsor
or any of its Affiliates, and may include any of its employees; the Property
Trustee shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent jurisdiction at
the expense of the Sponsor;
(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 offered to the Property Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(g) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
but the Property Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and if the Property
Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Trust, personally
or by agent or attorney at the expense of the Sponsor and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation;
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(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;
(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; and
(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.
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
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
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,
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(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.
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 the execution on behalf of the Trust of 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;
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(iii) the preparation for filing by the Trust and execution on behalf
of 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 and
the execution on behalf of the Trust 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, and the execution and delivery
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, Preferred Securities 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, less applicable discounts
and commissions.
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 Securities Certificates, registered in the name of the
Sponsor, evidencing an aggregate of __________ Common Securities having an
aggregate Liquidation Amount of $________ 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 $___________, 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 $___________ (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
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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.
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 (including
of Additional Interest, as defined in the Officers' Certificate establishing the
terms of the Subordinated Debt Securities pursuant to Section 303 of the
Indenture) 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 _________, 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, shall be payable quarterly in arrears on
_________, _________, _________ and _________ of each year, commencing on
_________, 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
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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
______% 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, which shall be one
Business Day prior to such Distribution 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
Distribution Date.
Section 5.2 REDEMPTION
(a) On each Indenture Redemption Date and on the stated maturity of the
Subordinated Debt Securities, the Trust will be required to redeem a Like Amount
of 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 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
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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 Trust 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, 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 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 Securities 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
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recordholders 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
provisions relating to the redemption of Preferred Securities or Preferred
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 resulting from an Indenture 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
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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. 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. [Escheat]
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
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the amount of any corresponding payment such Holder has directly received
pursuant to [Section 2.19] of 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 formation 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 Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities 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 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 SECURITIES
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 Securities
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 Securities
Certificates and Common Securities Certificates (subject to Section 6.9 in the
case of the Common Securities Certificates) and registration of transfers and
exchanges of Preferred Securities Certificates as herein provided. The Bank
shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the
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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 Securities 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 Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 6.7.
Every Preferred Securities 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 Securities 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 Securities
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 transfer or exchange of Preferred Securities
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
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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, with the consent of the Regular
Trustees (which consent shall not be unreasonably withheld), an office or
offices or agency or agencies where Preferred Securities 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 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
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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 Securities 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 SECURITIES CERTIFICATES; COMMON SECURITIES
CERTIFICATE
(a) The Preferred Securities Certificates, upon original issuance, will be
issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities 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 Securities Certificate representing such Owner's interest
in such Preferred Securities, except as provided in Section 6.12. Unless and
until Definitive Preferred Securities 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 Securities Certificates
(including the payment of the Liquidation Amount of and Distributions or
Redemption Price on the Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates and the giving of instructions or
directions to Owners of Preferred Securities evidenced by Book-Entry
Preferred Securities Certificates) as the sole Holder of Preferred
Securities evidenced by Book-Entry Preferred Securities 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 Securities
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 Securities 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 Securities Certificate representing the Common
Securities shall be issued to the Sponsor in the form of a definitive Common
Securities Certificate.
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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
Securities 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 SECURITIES 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 Securities 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 Securities Certificates representing beneficial interests
aggregating at least a majority of the aggregate Liquidation Amount of the
Outstanding Preferred Securities advise the Regular Trustees 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 Securities Certificates, then the
Regular Trustees shall notify the Clearing Agency and the Clearing Agency shall
notify all Owners of Preferred Securities Certificates and the other Trustees of
the occurrence of any such event and of the availability of the Definitive
Preferred Securities Certificates to Owners of such class or classes, as
applicable, requesting the same. Upon surrender to the Regular Trustees or the
Securities Registrar of the typewritten Preferred Securities Certificate or
Certificates representing the Book Entry Preferred Securities Certificates by
the Clearing Agency, accompanied by registration instructions, the Regular
Trustees, or any one of them, shall execute the Definitive Preferred Securities
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 Securities Certificates, the Trustees shall recognize the Holders of
the Definitive Preferred Securities Certificates as Securityholders. The
Definitive Preferred Securities 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, or
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contained in the terms of the Certificates, 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 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.
(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 aggregate
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 Preferred Securityholders, 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.
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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.
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
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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
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 Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
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 Trust Security.
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Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust 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 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
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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 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
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Section 9.3 COMPENSATION; INDEMNITY; FEES
The Sponsor agrees:
(a) to pay to the Trustees from time to time such 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 the 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 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
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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.
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
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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 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.
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(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 Securityholders and
the other Trustees. 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 such notice of resignation, the Relevant
Trustee may petition, at the expense of the Sponsor, any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
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 aggregate 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 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 Securityholders 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
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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.
The Property Trustee shall, at the expense of the Sponsor, give notice of
each resignation and each removal of a Trustee and each appointment of a
successor 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 Relevant 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 and each successor Relevant Trustee with respect 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 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.
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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 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
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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 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.
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ARTICLE X.
TERMINATION, LIQUIDATION AND MERGER
Section 10.1 TERMINATION UPON EXPIRATION DATE
Unless earlier dissolved, the Trust shall automatically dissolve on
__________ (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, or the dissolution or liquidation 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);
(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 Preferred Securities (which direction is
optional and wholly within the discretion of the Sponsor);
(e) the redemption of all of the Preferred Securities in connection with
the redemption of all the Subordinated Debt Securities; and
(f) the entry of an order for dissolution of the Trust 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) or (d) of
Section 10.2
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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 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(c) 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 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(c) 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 its best
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
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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
Trust 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 Indenture
Event of Default has occurred and is continuing, the Preferred Securities shall
have a priority over the Common Securities.
Section 10.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF TRUST
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except pursuant to this Section 10.5
or Section 10.4. At the request of the Sponsor, with the consent of the Holders
of at least a majority in aggregate Liquidation Amount of the Outstanding
Preferred Securities, the Trust may merge with or into, consolidate, amalgamate,
or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that:
(i) such successor entity either (x) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (y)
substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Preferred Securities rank 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 traded, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which the Preferred Securities
are then listed or traded, if any;
(iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any nationally
recognized statistical rating organization
(v) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the
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holders of the Preferred Securities (including any
Successor Securities) in any material respect;
(vi) such successor entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Sponsor has received an Opinion of
Counsel to the effect that (x) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Preferred
Securities (including any Successor Securities) in any material respect,
and (y) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor entity
will be required to register as an investment company under the 1940 Act;
and
(viii) the Sponsor owns all of the common securities of such
successor entity and the Guarantor guarantees the obligations of such
successor entity under the Successor Securities at least to the extent
provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent
of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor entity to
be classified as other than a 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
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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 1940 Act; provided, however, that in the case of clause (i),
such action shall not adversely affect in any material respect the interests of
any 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 Securityholders representing a majority (based upon aggregate Liquidation
Amount) of the 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
1940 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 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 1940 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
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<PAGE>
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 Trust 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 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 Eight 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
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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 __________, facsimile number (619)
_____________. 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.
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 TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL 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
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<PAGE>
TRUST 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 DEPOSITOR, THE TRUST AND EACH HOLDER AND
BENEFICIAL OWNER OF A PREFERRED SECURITY (BY ITS ACCEPTANCE OF AN INTEREST
THEREIN) SHALL BE DEEMED TO HAVE AGREED TO TREAT THE NOTES AS INDEBTEDNESS FOR
ALL U.S. TAX PURPOSES AND THE PREFERRED SECURITY AS EVIDENCE OF AN INDIRECT
BENEFICIAL OWNERSHIP INTEREST IN THE NOTES.
(Signature Pages Follow)
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<PAGE>
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:
__________________________________________
Name: Charles A. McMonagle
Title: Vice President and Treasurer
THE BANK OF NEW YORK, as Property Trustee
By:
__________________________________________
Name
Title:
THE BANK OF NEW YORK (DELAWARE), as Delaware
Trustee
By:
__________________________________________
Name
Title:
<PAGE>
Declaration
REGULAR TRUSTEES
----------------
By:
___________________________________________
Name: Neal E. Schmale
Title: Executive Vice President and Chief
Financial Officer
By:
___________________________________________
Name: Frank H. Ault
Title: Executive Vice President, Controller
and Chief Accounting Officer
By:__________________________________________
Name: Charles A. McMonagle
Title: Vice President and Treasurer
2
<PAGE>
EXHIBIT 4.4
FORM OF
GUARANTEE AGREEMENT
Between
SEMPRA ENERGY
(as Guarantor)
and
THE BANK OF NEW YORK
(as Trustee)
dated as of
February 21, 2000
<PAGE>
CROSS-REFERENCE TABLE*
- ------------------------------- -------------------------------
Section of Trust Indenture Section of
Act of 1939, as amended Guarantee Agreement
- ------------------------------- -------------------------------
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)
- --------------------------------------------------------------------------------
* 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.
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ARTICLE I. DEFINITIONS........................................................................................................... 1
Section 1.1 Definitions............................................................................................. 1
-----------
ARTICLE II. TRUST INDENTURE ACT.................................................................................................. 4
Section 2.1 Trust Indenture Act; Application........................................................................ 4
--------------------------------
(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........................................................................................ 4
(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............................................................................. 4
Section 2.2 List of Holders; Preferential Claims.................................................................... 4
------------------------------------
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a) not later
than 15 days after each of ________, ________, _______ and ________ (each such date a "Regular 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 Regular 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..................................... 4
(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...................................................................... 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........................................................ 5
------------------------------------------------
Section 2.6 Events of Default; Waiver............................................................................... 5
-------------------------
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(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.................................................................... 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
------------------------------------------
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(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............................................................... 6
(b) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce this
Guarantee Agreement for the benefit of the Holders................................................................ 6
(c) 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
shall be read into this Guarantee Agreement against the 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 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.................................. 6
(d) 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:.................................................................................. 6
Section 3.2 Certain Rights of Guarantee Trustee..................................................................... 7
-----------------------------------
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(a) Subject to the provisions of Section 3.1:........................................................................... 7
(b) 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........................................................... 8
Section 3.3 Indemnity.............................................................................................. 8
---------
Section 3.4 Fees and Expenses...................................................................................... 8
-----------------
ARTICLE IV. GUARANTEE TRUSTEE................................................................................................... 9
Section 4.1 Guarantee Trustee; Eligibility......................................................................... 9
------------------------------
(a) There shall at all times be a Guarantee Trustee which shall:........................................................ 9
(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).................................................................................................... 9
(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.................................. 9
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.......................................... 10
-------------------------------------------------------------
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(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or removed without cause at
any time by the Guarantor........................................................................................ 9
(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................................................................. 9
(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................................................... 9
(d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 4.2 within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Guarantee Trustee 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...................................................................................... 10
ARTICLE V. GUARANTEE........................................................................................................... 10
Section 5.1 Guarantee...................................................................................... 10
---------
Section 5.2 Waiver of Notice and Demand.................................................................... 10
---------------------------
Section 5.3 Obligations Not Affected....................................................................... 10
------------------------
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(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;................................................ 11
(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 Notes 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;.................................................................. 11
(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;........................................................... 11
(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;............................................................................... 11
(e) any invalidity of, or defect or deficiency in, the Preferred Securities;......................................... 11
(f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or.......................... 11
(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.................................................................................................. 11
Section 5.4 Rights of Holders.................................................................................. 11
-----------------
Section 5.5 Guarantee of Payment............................................................................... 12
--------------------
Section 5.6 Subordination...................................................................................... 12
-------------
Section 5.7 Independent Obligations............................................................................ 12
-----------------------
ARTICLE VI. COVENANTS AND SUBORDINATION........................................................................................ 12
Section 6.1 Subordination...................................................................................... 12
-------------
Section 6.2 Pari Passu Guarantees.............................................................................. 12
---------------------
ARTICLE VII. TERMINATION....................................................................................................... 13
Section 7.1 Termination........................................................................................ 13
-----------
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(continued)
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ARTICLE VIII. MISCELLANEOUS............................................................................................... 13
Section 8.1 Successors and Assigns........................................................................... 13
----------------------
Section 8.2 Amendments....................................................................................... 13
----------
Section 8.3 Notices.......................................................................................... 13
-------
(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:............ 13
(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:..................................................... 14
(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:...................................... 14
(d) if given to any Holder, at the address set forth on the books and records of the Issuer....................... 14
Section 8.4 Benefit......................................................................................... 14
-------
Section 8.5 Interpretation.................................................................................. 15
--------------
(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;.................................................... 15
(b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout;.......................... 15
(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;........................................... 15
(d) all references in this Guarantee Agreement to Articles and Sections are to Articles and
Sections of this Guarantee Agreement unless otherwise specified;............................................ 15
(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;................................................................................................... 15
(f) a reference to the singular includes the plural and vice versa; and........................................... 15
(g) the masculine, feminine or neuter genders used herein shall include the masculine, feminine and
neuter genders.............................................................................................. 15
Section 8.6 Governing Law................................................................................... 15
-------------
</TABLE>
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<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 up to $____________
aggregate Liquidation Amount (as defined in the Declaration) of its _____%
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 Notes
(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 Notes 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 Indenture dated as of February 23, 2000 among the
Company and The Bank of New York, as trustee thereunder, as supplemented by an
Officers' Certificate (as defined in the Indenture) dated as of February 23,
2000 pursuant to Section 301 of the Indenture.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of Preferred Securities or Common 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
-2-
<PAGE>
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 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.
"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.
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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 of ________, ________,
_______ and ________ (each such date a "Regular 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 Regular 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.
--------------------------------
(a) Not later than 60 days following February 15 of each year,
commencing February 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.
(b) In addition, the Guarantee Trustee shall transmit to all Holders
and to the Company, a brief report dated as of such May 15 with respect to its
eligibility under Section 4.1 or, in lieu thereof, if to the best of its
knowledge it has continued to be eligible under said Section, a written
statement to such effect.
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
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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 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 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
---------------------
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
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shall be effective whether or not conveying documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) 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 shall be read into this
Guarantee Agreement against the 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 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.
(d) 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) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee Agreement, and
the Guarantee Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof 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;
(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 or omitted to be taken by it in good faith in accordance with the of the
Holders of not less than a Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or
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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
adequate indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
Section 3.2 Certain Rights of Guarantee Trustee.
-----------------------------------
(a) Subject to the provisions of Section 3.1:
(i) 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.
(ii) 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.
(iii) 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.
(iv) The Guarantee Trustee may consult with legal counsel of
its selection, and the written advice or written opinion of such legal 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 accordance with such advice or opinion. Such
legal counsel may be legal counsel to the Guarantor or any of its Affiliates and
may be one of its employees. The Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction.
(v) 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 Holder, unless such Holder shall have provided
to the Guarantee Trustee such adequate security and indemnity reasonably
satisfactory to it, against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by
the Guarantee Trustee;
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provided that, nothing contained in this Section 3.2(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this Guarantee
Agreement.
(vi) 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.
(vii) 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 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.
(viii) 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 (A) may request instructions from the Holders, (B) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(b) 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 Indemnity. The Guarantor agrees to indemnify the Guarantee
---------
Trustee and its officers, directors, employees, representatives and agents for,
and to hold it and such persons harmless against, any loss, liability or expense
of whatever kind or nature regardless of their merit, demanded, asserted or
claimed against the Guarantee Trustee and incurred without negligence or bad
faith on the part of the Guarantee Trustee, arising out of or in connection with
the acceptance or administration of this Guarantee Agreement, including without
limitation the costs and expenses of defending itself (including reasonable
attorneys' and consultants' fees and expenses) against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. The indemnification provided hereunder shall survive the termination
of this Guarantee Agreement and the resignation or removal of the Guarantee
Trustee.
Section 3.4 Fees and Expenses. The Guarantor agrees:
-----------------
(1) to pay the Guarantee Trustee from time to time such compensation as the
Guarantor and the Guarantee Trustee shall from time to time agree in writing for
all services rendered by it
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hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Guarantee
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Guarantee Trustee in accordance with any provision of
this Indenture (including the 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 bad faith.
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
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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 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee 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 Notes 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
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conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(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 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 Notes 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
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amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
Section 5.7 Independent Obligations. The Guarantor acknowledges that its
-----------------------
obligations hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI.
COVENANTS AND SUBORDINATION
Section 6.1 Subordination. The obligations of the Gurantor under this
-------------
Guarantee Agreement will constitute unsecured obligations of the Guarantor and
will rank subordinate and junior in right of payment to all other liabilities of
the Guarantor except those made pari passu or subordinate to such obligations
expressly by their terms.
Section 6.2 Pari Passu Guarantees. The obligations of the Guarantor under
---------------------
this Guarantee Agreement shall rank pari passu with the obligations of the
Guarantor under any similar Guarantee Agreements issued by the Guarantor on
behalf of the holders of preferred securities issued by any other trusts
established by Guarantor or its Affiliates.
ARTICLE VII.
TERMINATION
Section 7.1 Termination. This Guarantee Agreement shall terminate and no
-----------
be of no further force and effect upon (i) full payment of the Redemption Price
of all Preferred Securities, (ii) the distribution of Notes 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 Article VIII of 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
----------
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 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.: 619-696-4670
Attention: Chief Corporate Counsel
(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.: [619-696-4670]
Attention: [Chief Corporate Counsel]
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: _____________________________________
Name: Charles A. McMonagle
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Guarantee Trustee
By: _____________________________________
Name:
Title:
