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): July 26, 1999
EDISON INTERNATIONAL
(Exact name of registrant as specified in its charter)
CALIFORNIA 001-9936 95-4137452
(State of principal jurisdiction of (Commission file (I.R.S. employer
incorporation of organization) number) identification no.)
2244 Walnut Grove Avenue
(P.O. Box 800)
Rosemead, California 91770
(Address of principal executive offices, including zip code)
626-302-2222
(Registrant's telephone number, including area code)
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Items 1 through 4, 6, 8 and 9 are not included because they are inapplicable.
Item 5. Other Events
On July 26, 1999, EIX Trust I issued and delivered $500,000,000 of its
7.875% Cumulative Quarterly Income Preferred Securities, Series A, which are
guaranteed by Edison International to the extent set forth in the Prospectus and
Prospectus Supplement with respect thereto dated July 21, 1999. 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 July 21, 1999
1.2 Pricing Agreement dated July 21, 1999
4.1 Subordinated Indenture dated as of July 26, 1999
4.2 Supplemental Indenture No. 1 dated as of July 26, 1999
4.3 Amended and Restated Trust Agreement dated as of July 26, 1999
4.4 Guarantee Agreement dated as of July 26, 1999
4.5 7.875% Subordinated Deferrable Interest Note, Series A
4.6 7.875 % Cumulative Quarterly Income Preferred Securities, Series A
4.7 7.875% Common Securities
10.1 Note Purchase Agreement dated as of July 26, 1999
10.2 Agreement as to Expenses and Liabilities dated as of July 26, 1999
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SIGNATURES
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.
EDISON INTERNATIONAL
(Registrant)
KENNETH S. STEWART
-------------------------------------
KENNETH S. STEWART
Assistant General Counsel
August 9, 1999
EIX Trust I
EIX Trust II
EIX Trust III
Preferred Securities
guaranteed to the extent set forth in the Guarantees by
Edison International
Underwriting Agreement
July 21, 1999
To the Representatives of the several Underwriters
named in the respective Pricing Agreements
hereinafter described
Ladies and Gentlemen:
From time to time EIX Trust I, EIX Trust II or EIX Trust III, each a
statutory business trust formed under the laws of the State of Delaware (each a
"Trust" and collectively the "Trusts"), and Edison International, a California
corporation (the "Company"), as depositor 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, 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 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
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dated as of July 26, 1999 (as supplemented or amended from time to time, the
"Subordinated Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Indenture Trustee"). The Designated Securities will be guaranteed
by the Company to the extent set forth in a Guarantee Agreement between the
Company and The Chase Manhattan Bank, 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 trust agreement 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 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. Each of the Company and the Designated Trust, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
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(a) A registration statement on Form S-3 (File No 333-82293)
(the "Initial Registration Statement") in respect of the Securities,
the Subordinated Debentures and the Guarantees 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, 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 became effective upon filing, no other document with
respect to the Initial Registration Statement or 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 (i) the information contained in the form
of any final prospectus filed with the Commission pursuant to Rule
424(b) under the Act and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, (ii) all
exhibits thereto and (iii) 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 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, is 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
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either the Trusts or 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 as amended
or supplemented shall be deemed to refer to the Prospectus as 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) 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; the Prospectus at the time it
was filed did not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; 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
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
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 conforms, and any further
amendments or supplements to the Registration Statement will conform,
in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder and does not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment 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 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 has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus
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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 or the Company and its subsidiaries (other than the
Designated Trust) taken as a whole or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' 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, with power and authority to conduct its business as
described in the Prospectus;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(g) 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; 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;
(h) Each of Southern California Edison Company, Edison Mission
Energy and Edison Capital (the "Significant Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
power and authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of ownership or leasing of property or the
conduct of business, except where the failure so to qualify or be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs
of the Company and its subsidiaries taken as a whole; and all of the
issued and outstanding capital stock of each Significant Subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and all such shares owned by the Company, directly or
through subsidiaries, are owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or security;
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(i) 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 Over-allotment Options (as defined in Section 3
hereof) with respect to such Securities, such Designated Securities
will be duly and validly authorized and 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 right; 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) 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 authorized and issued and
will be fully paid beneficial interests in the Designated Trust 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; 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 Agreement as to Expenses and
Liabilities between the Company and the Designated Trust in the form
set forth in Exhibit D to the Trust Agreement (the "Designated Expense
Agreement") (all such Designated Expense Agreements together, the
"Expense Agreements'), 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 Guarantee Trustee (as defined in the Designated
Guarantee), (ii) in the case of the Designated Expense Agreement, by
the Designated Trust, (iii) in the case of the Trust Agreement, by the
Trustees (as defined in the Trust Agreement) and (iv) in the case of
the Subordinated Indenture, by the Indenture Trustee, and in the case
of the Designated Subordinated Debentures, when authenticated and
delivered by the Indenture Trustee, 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
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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,
reorganization and other 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, which will be in substantially the form
filed as exhibits to the Registration Statement, will conform in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented with respect to the Designated Securities to
which they relate;
(m) 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 Designated Expense Agreement and the Trust
Agreement and the consummation of the transactions contemplated herein
and therein 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 indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Trust is a party or by
which such Trust is bound or to which any of the property or assets of
such Trust is subject, nor will such action result in any violation of
the provisions of the Certificate of Trust or Trust Agreement of such
Trust or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Trust or any
of its 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 Trust or the consummation
by such Trust of the transactions contemplated by this Agreement, the
Pricing Agreement or any Over-allotment Option, the Designated
Securities, the Designated Expense Agreement or the Trust Agreement,
except (i) such as have been, or will have been, prior to each Time of
Delivery, obtained under the Act and the Trust Indenture Act and (ii)
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;
(n) The issuance 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 Expense Agreements, the Subordinated Debentures, the Trust
Agreements and the Subordinated Indenture, and the consummation of the
transactions contemplated herein and therein 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 indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in
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any violation of the provisions of the Articles of Incorporation or
By-Laws of the Company 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 properties or any of its 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 Guarantees or the Subordinated
Debentures or the consummation by the Company of the transactions
contemplated by this Agreement, any Pricing Agreement, the Guarantees,
the Expense Agreements, the Subordinated Debentures, the Trust
Agreements or the Subordinated Indenture, except (i) such as have
been, or will have been, prior to each Time of Delivery, obtained
under the Act or the Trust Indenture Act and (ii) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the issuance and sale by the Company of the Guarantees and the
Subordinated Debentures;
(o) 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 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, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' equity
or results of operations of either the Designated Trust or the Company
and its subsidiaries 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;
(p) None of the Designated Trust, the Company nor any of its
subsidiaries, as applicable, is 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 subsidiaries, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, other than
any such violation or default that would not, individually or in the
aggregate, have a material adverse effect on or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of either the Designated Trust or the Company and
its subsidiaries taken as a whole;
(q) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business 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 condition,
financial or otherwise, or the earnings or business affairs 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
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or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries taken as a whole;
(r) 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;
(s) The statements set forth in (i) the Prospectus under the
captions "Description of Securities", "Description of Debt Securities",
"Description of Preferred Securities", "Description of Preferred
Securities Guarantees", "Description of Expense Agreements" and
"Relationship among Preferred Securities, Preferred Securities
Guarantees and Subordinated Debt Securities Held by Each Trust" and
(ii) in the Prospectus as amended or supplemented under the captions
"Description of Series __ QUIPS" and "Description of Series __ QUIDS",
insofar as they constitute a summary of the terms of the Securities,
the Subordinated Debentures, the Guarantees, the Expense Agreements and
the Company Agreements (including the Designated Securities, the
Designated Subordinated Debentures, the Designated Guarantee and the
Designated Expense Agreement) and (x) in the Prospectus under the
caption "Plan of Distribution" and (y) in the Prospectus as amended or
supplemented under the captions "Underwriting" and "Material United
States Federal Income Tax Considerations", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
in each case are accurate, complete and fair;
(t) Neither the Designated Trust nor the Company nor any of
its subsidiaries is or, after giving effect to the offering and sale of
the Securities, will be, an "investment company" or an entity
"controlled" by an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act");
(u) Arthur Andersen 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; and
(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 will be affected by the Year 2000
Problem. As a result of such review, the Company does not believe that
the Year 2000 Problem will have a material adverse effect on the
general affairs, management, the current or future consolidated
financial position, business prospects, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole or
result in
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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 will not, in
the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000.
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 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
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.
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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 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 an account designated
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 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 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 time and date as the Representatives,
the Designated Trust and the Company may agree upon in writing, such time and
date, 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".
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 with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so
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<PAGE>
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 its 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, provided that in connection
therewith neither the Designated Trust nor the Company shall be
required to (i) qualify as a foreign corporation, (ii) file a general
consent to service of process in any jurisdiction or (iii) comply with
any other requirement in connection with such qualification deemed by
the Company to be unduly burdensome;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of the 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
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
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<PAGE>
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 subsidiaries (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)
which mature more than one year after such Time of Delivery 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;
(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.
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<PAGE>
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, 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; (iii) all expenses
in connection with the qualification of the Securities 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, Guarantee Trustee 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) the cost of qualifying the Securities and
the Subordinated Debentures with The Depository Trust Company; (ix) 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 (x) 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 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:
14
<PAGE>
(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 this 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) 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, (i) to the effect set forth in
Annex III hereto and (ii) to the effect that
(A) Each of the Subordinated Indenture and the
Designated Expense Agreement constitutes a legally valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms;
(B) 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
Trust in accordance with the terms of the Note Purchase
Agreement, dated as of July 21, 1999, between the Company and
the Trust, 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;
(C) The Designated Guarantee, upon due execution,
authentication and delivery of the Designated Securities and
upon payment therefor in accordance with the terms of the
Underwriting Agreement, will constitute a legally valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms;
(D) The Registration Statement and the Prospectus as
amended or supplemented (in each case, excluding the documents
incorporated by reference
15
<PAGE>
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 the Form T-1's.
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; and
(E) Such counsel has participated in telephone
conferences with officers and other representatives of the
Company, 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 a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus as amended or
supplemented (including the documents incorporated by
reference), as of its date or 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
the Prospectus as amended or supplemented or with respect to
the Form T-1's;
(d) Special Delaware counsel to the Designated Trust and the
Company satisfactory to the Representatives shall have furnished to the
Representatives, the Company and the Designated Trust their written
opinion, dated the respective Time of Delivery, 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 Delaware Business Trust Act, 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;
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<PAGE>
(ii) Under the Delaware Business Trust 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 as amended or supplemented;
(iii) The Trust Agreement constitutes a valid and
binding obligation of the Company and the Trustees, and is
enforceable against the Company and the Trustees, in
accordance with its 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, to general equity principles,
including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding
in equity or at law), and to the effect of applicable public
policy on the enforceability of provisions relating to
indemnification or contribution;
(iv) Under the Delaware Business Trust 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 and
(b) issue and perform its obligations under the Designated
Securities and the Common Securities of the Designated Trust;
(v) Under the Delaware Business Trust 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;
(vi) The Designated Securities have been duly
authorized by the Trust Agreement and are duly and validly
issued and, subject to the qualifications set forth therein,
fully paid and non-assessable beneficial interests in the
Designated Trust and are entitled to the benefits provided by
the Trust Agreement; the holders of the Designated Securities,
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;
provided that such counsel may note that the holders of the
Designated Securities may be obligated, pursuant to the Trust
Agreement, to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of certificates evidencing the
Designated Securities and the issuance of replacement
certificates and (b) 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;
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<PAGE>
(vii) The Common Securities of the Designated Trust
have been duly authorized by the Trust Agreement and are
validly issued and represent beneficial interests in the
Designated Trust;
(viii) Under the Delaware Business Trust 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) The issuance and sale by the Designated Trust of
Designated Securities and the Common Securities of the
Designated Trust, the execution, delivery and performance by
the Designated Trust of this Agreement and the Pricing
Agreement, the consummation by the Designated Trust of the
transactions contemplated hereby and thereby and compliance by
the Designated Trust with its obligations hereunder and
thereunder will not violate (a) any of the provisions of the
Certificate of Trust of the Designated Trust or the Trust
Agreement, or (b) and applicable Delaware law or
administrative regulation;
(x) 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, no
authorization, approval, consent or order of any Delaware
court or governmental authority or agency is required to be
obtained by the Designated Trust solely in connection with the
issuance and sale of the Designated Securities and the Common
Securities of the Designated Trust. (In rendering the opinion
expressed in this paragraph (x), such counsel need express no
opinion concerning the securities laws of the State of
Delaware); 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 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.
(e) Tax counsel for the Designated Trust and the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated the respective Time of
Delivery, 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";
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<PAGE>
(f) 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 effective date of the Registration Statement or the
date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(g) (i) Neither the Designated Trust nor the Company and 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 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 or supplemented 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
and its subsidiaries (other than the Designated Trust) taken as a whole
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' 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 as amended or supplemented 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 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;
(h) 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
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<PAGE>
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(i) 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 Federal or New York State or State of
California 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;
(j) 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 this Agreement or
such later date as agreed to among the Designated Trust, the Company
and the Representatives; and
(k) 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 Securities certificates 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 its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (g) 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
20
<PAGE>
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 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 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 Company or
the Designated Trust 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
21
<PAGE>
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 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
22
<PAGE>
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.
(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
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.
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
23
<PAGE>
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 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 or 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 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 shall have been terminated except as provided in
Sections 6 and 8 hereof; but, if for any other reason Designated Securities
24
<PAGE>
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 the Designated Trust and the Company
shall then be under no 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.
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 be
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 officers
and directors of each Designated Trust, 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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<PAGE>
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,
EDISON INTERNATIONAL
By: .........................................
Name:
Title:
EIX TRUST I
By: Edison International, as Depositor
By: .........................................
Name:
Title:
EIX TRUST II
By: Edison International, as Depositor
By: .........................................
Name:
Title:
EIX TRUST III
By: Edison International, as Depositor
By: .........................................
Name:
Title:
26
<PAGE>
Pricing Agreement
[Names of Representatives,]
As Representatives of the several
Underwriters named in Schedule I hereto
[Address]
------------, ----
Ladies and Gentlemen:
EIX Trust [I] [II] [III], a statutory business trust formed under the
laws of the State of Delaware (the "Designated Trust"), and Edison
International, a California corporation (the "Company"), propose, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated July
[___], 1999 (the "Underwriting Agreement"), 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 this Agreement 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 or 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
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.
1
<PAGE>
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.
2
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us [___] 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
and the Designated Trust and the Company. 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,
EDISON INTERNATIONAL
By: ........................................
Name:
Title:
EIX TRUST [I] [II] [III]
By: Edison International, as Depositor
By: ........................................
Name:
Title:
Accepted as of the date hereof:
[Names of Representatives]
By:................................
3
<PAGE>
SCHEDULE I
Number of Maximum Numb
Firm Designated of Optional Designated
Securities Securities Which
Underwriter to be Purchased May be Purchased
[Names of Representatives]..........
[Names of other Underwriters].......
Total.............
=============== ====================
4
<PAGE>
SCHEDULE II
Designated Trust:
EIX Trust [I] [II] [III]
Title of Designated Securities:
[____ % Cumulative Quarterly Income Preferred Securities, Series ___ (QUIPSSM)]
(Liquidation Amount $25 per Preferred Security)
Aggregate liquidation amount:
Firm Designated Securities: $_________________
Optional Designated Securities: [up to $_______________]
[none]
Price to public:
_____% of the liquidation amount of the Designated Securities
Purchase price to Underwriters:
_____% 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
Accountants' letter to be delivered on date of Pricing Agreement:
Yes
5
<PAGE>
Trust Agreement:
Amended and Restated Trust Agreement dated as of_______________, ____
among the Company, as Depositor, The Chase Manhattan Bank, as Property
Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, the Regular
Trustees named therein and the several Holders of Trust Securities
Designated Guarantee:
Guarantee Agreement dated as of _____________, ____ between the Company
and The Chase Manhattan Bank, as Trustee
Designated Subordinated Debentures:
[$_____________ aggregate principal amount of ___% Subordinated Deferrable
Interest Notes, 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:
______________________ 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
6
<PAGE>
Exchange for Designated Securities:
[The Subordinated Debentures may be delivered in exchange for the
Designated Securities as provided in the Trust Agreement]
Time of Delivery:
________ a.m., New York City time
-----------, -----
Closing location for delivery of Designated Securities:
Names and addresses of Representatives:
[Representatives]
[Address for Notices]
7
<PAGE>
ANNEX II
Pursuant to Section 7(f) 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 Designated Trust and 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 (and, if applicable,
financial forecasts and/or pro forma financial information) audited or
examined 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 separately furnished to the representative or representatives of
the Underwriters (the "Representatives")] [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 condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or 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 [have been
separately furnished to the Representatives][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 incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
1
<PAGE>
(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 condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference 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 condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus or 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;
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 net current
assets or stockholders' 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 net revenues or
operating profit 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)
included or 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.
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.
4
<PAGE>
ANNEX III
July 26, 1999
To the Representatives named on
Exhibit A hereto of the Underwriters
named on Exhibit B hereto
The Chase Manhattan Bank,
as Property Trustee, Indenture Trustee
and Guarantee Trustee
450 W. 33rd Street, 15th Floor
New York, New York 10001
Chase Manhattan Bank Delaware,
as Delaware Trustee
1201 N. Market Street
Wilmington, Delaware 19801
Re: Issuance of $500,000,000 Aggregate Liquidation Amount of
7.875% Cumulative Quarterly Income Preferred Securities, Series A
Ladies and Gentlemen:
This opinion is rendered to you in compliance with the provisions of
subsection (c) of Section 7 of the Underwriting Agreement dated as of July 21,
1999 (the "Underwriting Agreement") among Edison International (the "Company"),
EIX Trust I ("Trust I"), EIX Trust II and EIX Trust III, each a statutory
business trust formed under the laws of the State of Delaware (each a "Trust,"
and collectively, the "Trusts") and the Representatives (the "Representatives")
of the several Underwriters named in the Pricing Agreement dated as of July 21,
1999 (the "Pricing Agreement") among the Company, Trust I and the
Representatives. The Underwriting Agreement and the Pricing Agreement provide
for the sale to you of $500,000,000 aggregate principal amount of 7.875%
Cumulative Quarterly Income Preferred Securities, Series A, issued by Trust I
(the "QUIPS"). The QUIPS represent undivided beneficial interests in the assets
of Trust I, which generally comprise a corresponding principal amount of 7.875%
Subordinated Deferrable Interest Notes, Series A (the "QUIDS") issued by the
Company, under a Subordinated Indenture, as amended (the "Indenture"), entered
into by and between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"). The QUIPS and QUIDS have been registered under the Securities Act of
1933, as amended (the "Act"), on a Registration Statement on Form S-3 filed with
the Securities and Exchange Commission (the
<PAGE>
"Commission") on July 2, 1999 (File No. 333-82293), as amended by Amendment
No. 1 filed with the Commission on July 13, 1999, and Amendment No. 2 filed with
the Commission on July 15, 1999 (as so amended, including the documents
incorporated by reference therein, the "Registration Statement"). The QUIDS and
QUIPS are to be sold as described in the Registration Statement and the
prospectus and prospectus supplement relating to the QUIDS and QUIPS.
Capitalized terms used herein without definition have the meanings ascribed to
them in the Underwriting Agreement, and, in the case of terms not used in the
Underwriting Agreement, the meanings ascribed to them in the Indenture.
I am an Assistant General Counsel and Assistant Secretary of the Company.
In rendering the opinions expressed below, I or attorneys acting under my
supervision have (a) examined and relied on originals, or copies certified or
otherwise identified as true copies of the originals, of such records,
documents, certificates and other instruments, (b) made such investigations of
law and fact and (c) obtained and relied upon such certificates as to factual
matters of public officials, officers or employees of the Company and other
persons, as I have deemed appropriate to enable me to give the opinions
expressed below. I believe that both you and I are justified in relying upon
such certificates.
I am opining herein as to the effect on the subject transactions only of
the federal laws of the United States and the internal laws of the State of
California, and I express no opinion with respect to the applicability thereto,
or the effect thereon, of the laws of any other jurisdiction, or as to any
matters of municipal law or the laws of any local agencies within any state.
I am familiar with and have examined the Registration Statement, including
the prospectus dated July 21, 1999 (the "Prospectus") and the prospectus
supplement dated July 21, 1999 (the "Prospectus Supplement," and together with
the Prospectus, the "Final Prospectus"), which Prospectus and Prospectus
Supplement incorporate by reference certain documents filed with the Commission.
Based on the foregoing and subject to the qualifications set forth herein,
it is my opinion that, as of the date hereof:
1. Each of the Company, Southern California Edison Company, a California
corporation, Edison Mission Energy, a California corporation, and Edison
Capital, a California corporation, has been duly incorporated and is validly
existing and in good standing under the laws of the State of California, with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the Final
Prospectus.
2. The Company has an authorized capitalization as set forth in the Final
Prospectus and all of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable.
<PAGE>
3. To the best of my knowledge, there is no pending or threatened action,
suit or proceeding before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries (including Trust
I) of a character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus.
4. Each of the Underwriting Agreement and the Pricing Agreement has been
duly authorized, executed and delivered by Trust I and the Company.
5. Each of the Trust Agreement, the Indenture, the Designated Expense
Agreement and the Designated Guarantee has been duly authorized, executed and
delivered by the Company, and each of the Indenture, the Designated Expense
Agreement and the Designated Guarantee constitutes a legally valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
6. Each of the Trust Agreement, the Indenture and the Designated Guarantee
has been duly qualified under the Trust Indenture Act.
7. The QUIDS have been duly authorized, executed, issued and delivered by
the Company and constitute the legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, and are
entitled to the benefits provided by the Indenture.
8. The issuance by the Company of the Designated Guarantee and the QUIDS,
the issuance and sale by Trust I of the QUIPS, the compliance by the Company
with the provisions of the Underwriting Agreement, the Pricing Agreement and the
Company Agreements, the compliance by Trust I with the provisions of the
Underwriting Agreement, the Pricing Agreement and the Designated Securities and
the consummation of the transactions therein contemplated will not: (a) to the
best of my knowledge violate 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 properties or Trust I, (b) violate provisions of the Articles of
Incorporation or Bylaws of the Company, (c) result in the breach of or a default
under any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to me to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the material property or assets of the Company or any
of its subsidiaries is subject, or (d) require any consents, approvals,
authorizations, registrations, declarations or filings by the Company, except
(i) such as have been obtained under the Act and the Trust Indenture Act and
(ii) such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the QUIPS by the Underwriters
or the issuance of the Designated Guarantee and QUIDS by the Company.
9. The statements set forth in (i) the Prospectus under the captions
"Description of Securities," "Description of Debt Securities," Description of
Preferred Securities," "Description of Preferred Securities Guarantees,"
"Description of Expense Agreements" and "Relationship Among Preferred
Securities, Preferred Securities Guarantees and
<PAGE>
Subordinated Debt Securities Held by Each Trust" and (ii) in the Final
Prospectus under the captions "Description of Series A QUIDS" and "Description
of Series A QUIPS," insofar as they constitute a summary of the terms of the
QUIPS, the Trust Agreement, the QUIDS, the Indenture, the Designated Guarantee
and the Designated Expense Agreement and (y) in the Prospectus under the caption
"Plan of Distribution" and (z) in the Final Prospectus under the caption
"Underwriting," insofar as they purport to describe the provisions of the laws
and documents referred to therein, in each case are accurate and complete in all
material respects. To the best of my knowledge, there are no statutes or legal
or governmental proceedings required to be described in the Final Prospectus
that are not described as required, or contracts or documents of a character
required to be described in the Registration Statement or Prospectus (or
required to be filed under the Exchange Act, if upon such filing they would be
incorporated by reference in the Prospectus) or to be filed as exhibits to the
Registration Statement that are not described and filed as required.
10. The Registration Statement and the Final Prospectus 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 I express 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 Final Prospectus or with respect
to any Form T-1. In passing upon the compliance as to form of the Registration
Statement and the Final Prospectus, I have assumed that the statements made and
incorporated by reference therein are correct and complete.
11. Neither the Company nor Trust I is an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act.
12. Neither the Company nor any of the Significant Subsidiaries is in
violation of its Bylaws or Articles of Incorporation, except for such violations
that would not have a material adverse effect on the Company or such Significant
Subsidiary, as applicable, or the transactions contemplated by the Company
Agreements.
In addition, I have participated in telephonic conferences with officers
and other representatives of the Company, and your representatives, at which the
contents of the Registration Statement and the Final Prospectus and related
matters were discussed and, although I am not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained or incorporated by reference in the Registration Statement and the
Final Prospectus and have not made any independent check or verification
thereof, during the course of such participation, no facts came to my attention
that caused me to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Final Prospectus (including the
documents incorporated by reference), as of its date or as of the date hereof,
<PAGE>
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 I express no belief with respect to the financial statements,
schedules and other financial data included or incorporated by reference in, or
omitted from, the Registration Statement or the Final Prospectus or with respect
to any Form T-1.
The opinions rendered in paragraphs 5 and 7, relating to the enforceability
of the Indenture, the Designated Expense Agreement, the Designated Guarantee and
the QUIDS, respectively, are subject to the following exceptions, limitations
and qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors generally; (ii) the effect of general principles of
equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing and possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding in equity
or at law; (iii) certain rights, remedies and waivers contained in the
Indenture, the Designated Expense Agreement, the Designated Guarantee and the
QUIDS may be limited or rendered ineffective by applicable California laws or
judicial decisions governing such provisions, but such laws or judicial
decisions do not render the Indenture, the Designated Expense Agreement, the
Designated Guarantee and the QUIDS invalid or unenforceable as a whole; (iv) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy; (v) the possible unenforceability of waivers of rights or
defenses, as to which I express no opinion; (vi) the unenforceability under
certain circumstances, under California or federal law or court decisions, of
provisions expressly or by implication waiving broadly or vaguely stated rights,
unknown future rights, defenses to obligations or rights granted by law, where
such waivers are against public policy or prohibited by law; (vii) the
unenforceability under certain circumstances of provisions to the effect that
rights or remedies are not exclusive, that every right or remedy is cumulative
and may be exercised in addition to or with any other right or remedy, that
election of a particular remedy or remedies does not preclude recourse to one or
more other remedies, that any right or remedy may be exercised without notice,
or that failure to exercise or delay in exercising rights or remedies will not
operate as a waiver of any such right or remedy; and (viii) the effect of
California law, which provides that a court may refuse to enforce, or may limit
the application of, a contract or any clause thereof which the court finds as a
matter of law to have been unconscionable at the time it was made or contrary to
public policy.
To the extent that the obligations of the Company under the Company
Agreements may be dependent upon such matters, I assume for purposes of this
opinion that the parties to each of the Company Agreements (other than the
Company) is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that each of the Trustee, the Property
Trustee, the Delaware Trustee and the Guarantee Trustee is duly qualified to
engage in the activities contemplated by each Company Agreement to which it is a
party; that each of the Company Agreements has been duly authorized, executed
and delivered by the
<PAGE>
parties thereto (other than the Company) and constitutes a legally valid
and binding obligation of the parties thereto (other than the Company)
enforceable against such parties in accordance with its terms; and each party
(other than the Company) to the Company Agreements is in compliance generally
under each Company Agreement to which it is a party and with all applicable laws
and regulations; and that each party to the Company Agreements (other than the
Company) has the requisite organizational and legal power and authority to
perform its obligations under each Company Agreement to which it is a party.
This opinion is rendered only to you as Representatives of the several
Underwriters under the Underwriting Agreement and the Pricing Agreement and is
solely for the benefit of the Underwriters in connection with the transactions
covered hereby. This opinion may not be relied upon by you for any other
purpose, or furnished to, quoted to, or relied upon by any other person, firm or
corporation for any purpose, without my prior written consent.
Very truly yours,
Kenneth S. Stewart
KSS:bhs:LW992040044
<PAGE>
A-1
EXHIBIT A
Representatives
Goldman, Sachs & Co.
A.G. Edwards & Sons, Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Smith Barney Inc.
<PAGE>
EXHIBIT B
Underwriters
Goldman, Sachs & Co.
A.G. Edwards & Sons, Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Smith Barney Inc.
ABN AMRO Incorporated
Banc of America Securities LLC
Bear, Stearns & Co. Inc.
CIBC World Markets Corp.
Deutsche Bank Securities Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
EVEREN Securities, Inc.
J.P. Morgan Securities Inc.
Charles Schwab & Co., Inc.
SG Cowen Securities Corporation
Advest, Inc.
Robert W. Baird & Co. Incorporated
BB&T Capital Markets, A Division of Scott & Stringfellow, Inc.
Blaylock & Partners, L.P.
J.C. Bradford & Co.
Crowell, Weedon & Co.
Dain Rauscher Wessels, a division of Dain Rauscher Incorporated
Fahnestock & Co. Inc.
Fifth Third Securities, Inc.
First Albany Corporation
First Union Capital Markets Corp.
Gruntal & Co., L.L.C.
J.J.B. Hilliard, W.L. Lyons, Inc.
Janney Montgomery Scott Inc.
Legg Mason Wood Walker, Incorporated
McDonald Investments Inc., A KeyCorp Company McGinn, Smith & Co., Inc.
Morgan Keegan & Company, Inc.
Olde Discount Corporation
Parker/Hunter Incorporated
Raymond James & Associates, Inc.
The Robinson-Humphrey Company, LLC
RONEY CAPITAL MARKETS, A Division of BANC ONE CAPITAL MARKETS, Inc.
Sterne, Agee & Leach, Inc.
Sutro & Co. Incorporated
TD Securities (USA) Inc.
Tucker Anthony Cleary Gull
U.S. Bancorp Piper Jaffray Inc.
Utendahl Capital Partners, L.P.
Wachovia Securities, Inc.
Wedbush Morgan Securities Inc.
The Williams Capital Group, L.P.
Pricing Agreement
Goldman, Sachs & Co.
A.G. Edwards & Sons, Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Smith Barney Inc.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
July 21, 1999
Ladies and Gentlemen:
EIX Trust I, a statutory business trust formed under the laws of the State
of Delaware (the "Designated Trust"), and Edison International, a California
corporation (the "Company"), propose, subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated July 21, 1999 (the "Underwriting
Agreement"), 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 this Agreement 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 or 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 of the Underwriters of the Designated Securities pursuant to
Section 12 of
1
<PAGE>
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.
2
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us 10 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
and the Designated Trust and the Company. 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,
EDISON INTERNATIONAL
By: ...............................
Name:
Title:
EIX TRUST I
By: Edison International, as Depositor
By: ...................................
Name:
Title:
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
A.G. EDWARDS & SONS, INC.
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES INCORPORATED
SALOMON SMITH BARNEY INC.
As Representatives of the several Underwriters
By: GOLDMAN, SACHS & CO.
By:..............................................
3
<PAGE>
SCHEDULE I
Number of Maximum Number
Firm Designated of Optional Designated
Securities Securities Which
Underwriter to be Purchased May be Purchased
----------- --------------- ----------------------
Goldman, Sachs & Co. .......................1,850,000. 277,500
A.G. Edwards & Sons, Inc. ..................1,850,000. 277,500
Lehman Brothers Inc. .......................1,850,000. 277,500
Merrill Lynch, Pierce, Fenner & Smith
Incorporated....................1,850,000. 277,500
Morgan Stanley & Co. Incorporated...........1,850,000. 277,500
PaineWebber Incorporated....................1,850,000. 277,500
Prudential Securities Incorporated..........1,850,000. 277,500
Salomon Smith Barney Inc. ..................1,850,000. 277,500
ABN AMRO Incorporated.........................200,000. 30,000
Banc of America Securities LLC................200,000. 30,000
Bear, Stearns & Co. Inc. .....................200,000. 30,000
CIBC World Markets Corp. .....................200,000. 30,000
Deutsche Bank Securities Inc. ................200,000. 30,000
Donaldson, Lufkin & Jenrette Securities
Corporation............................200,000. 30,000
EVEREN Securities, Inc. ......................200,000. 30,000
J.P. Morgan Securities Inc. ..................200,000. 30,000
Charles Schwab & Co., Inc. ...................200,000. 30,000
SG Cowen Securities Corporation...............200,000. 30,000
Advest, Inc. .................................100,000. 15,000
Robert W. Baird & Co. Incorporated............100,000. 15,000
BB&T Capital Markets, A Division of
Scott & Stringfellow, Inc. ............100,000. 15,000
Blaylock & Partners, L.P. ....................100,000. 15,000
J.C. Bradford & Co. ..........................100,000. 15,000
Crowell, Weedon & Co. 100,000 15,000
Dain Rauscher Wessels, a division of
Dain Rauscher Incorporated.............100,000. 15,000
Fahnestock & Co. Inc. ........................100,000. 15,000
Fifth Third Securities, Inc. .................100,000 15,000
First Albany Corporation......................100,000. 15,000
First Union Capital Markets Corp. ............100,000 15,000
Gruntal & Co., L.L.C. ........................100,000. 15,000
J.J.B. Hilliard, W.L. Lyons, Inc..............100,000 15,000
Janney Montgomery Scott Inc. .................100,000. 15,000
Legg Mason Wood Walker, Incorporated..........100,000. 15,000
<PAGE>
McDonald Investments Inc., A KeyCorp
Company................................100,000. 15,000
McGinn, Smith & Co., Inc. ....................100,000. 15,000
Morgan Keegan & Company, Inc. ................100,000 15,000
Olde Discount Corporation.....................100,000 15,000
Parker/Hunter Incorporated....................100,000 15,000
Raymond James & Associates, Inc. .............100,000 15,000
The Robinson-Humphrey Company, LLC............100,000 15,000
RONEY CAPITAL MARKETS, A Division of
BANC ONE CAPITAL MARKETS, Inc. ........100,000 15,000
Sterne, Agee & Leach, Inc. ...................100,000 15,000
Sutro & Co. Incorporated......................100,000 15,000
TD Securities (USA) Inc. .....................100,000. 15,000
Tucker Anthony Cleary Gull....................100,000 15,000
U.S. Bancorp Piper Jaffray Inc. ..............100,000 15,000
Utendahl Capital Partners, L.P. ..............100,000 15,000
Wachovia Securities, Inc. ....................100,000. 15,000
Wedbush Morgan Securities Inc. ...............100,000 15,000
The Williams Capital Group, L.P. .............100,000 15,000
--------------------------------
Total....................20,000,000 3,000,000
========== =========
<PAGE>
SCHEDULE II
Designated Trust:
EIX Trust I
Title of Designated Securities:
7.875 % Cumulative Quarterly Income Preferred Securities, Series A
(QUIPSSM) (Liquidation Amount $25 per Preferred Security)
Aggregate liquidation amount:
Firm Designated Securities: $500,000,000
Optional Designated Securities: up to $75,000,000
Price to public:
100% of the liquidation amount of the Designated Securities
Purchase price to Underwriters:
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 each 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
Accountants' letter to be delivered on date of Pricing Agreement:
Yes
Trust Agreement:
Amended and Restated Trust Agreement dated as of July 26, 1999 among the
Company, as Depositor, The Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee, the Regular Trustees named
therein and the several Holders of Trust Securities
<PAGE>
Designated Guarantee:
Guarantee Agreement dated as of July 26, 1999 between the Company and
The Chase Manhattan Bank, as Trustee
Designated Subordinated Debentures:
$515,464,000 aggregate principal amount ($592,783,600 aggregate principal
amount, if all of the Optional Designated Securities are purchased) of
7.875% Subordinated Deferrable Interest Notes, Series A, due July 26, 2029
Maturity:
July 26, 2029 (subject to (i) extension to a date not later than
July 26, 2048 and (ii) shortening to a date not earlier than July 26, 2014)
Interest rate:
7.875% per annum
Interest payment dates:
August 31, November 30, February 28 and May 31 of each year, commencing on
August 31, 1999
Extension period:
20 quarters
Redemption provisions:
Set forth in Section 4.2 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
Time of Delivery:
10:00 a.m., New York City time
July 26, 1999
<PAGE>
Closing location for delivery of Designated Securities:
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90071
Names and addresses of Representatives:
Goldman, Sachs & Co.
A.G. Edwards & Sons, Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Salomon Smith Barney Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
--------------------------------------------
EDISON INTERNATIONAL
TO
THE CHASE MANHATTAN BANK
Trustee
--------------------------------------------
SUBORDINATED INDENTURE
Dated as of July 26, 1999
--------------------------------------------
<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.
<PAGE>
TABLE OF CONTENTS
Page
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...................................10
Section 107. Conflict with Trust Indenture Act...........................11
Section 108. Effect of Headings and Table of Contents....................11
Section 109. Successors and Assigns......................................11
Section 110. Separability Clause.........................................11
Section 111. Benefits of Indenture.......................................11
Section 112. Governing Law...............................................12
Section 113. Legal Holidays..............................................12
Section 114. No Security Interest Created................................12
ARTICLE II. SECURITY FORMS..................................................12
Section 201. Forms Generally.............................................12
Section 202. Form of Face of Security....................................13
Section 203. Form of Reverse of Security.................................14
Section 204. Form of Legend for Global Securities........................18
Section 205. Form of Trustee's Certificate of Authentication.............19
ARTICLE III. THE SECURITIES.................................................19
Section 301. Amount Unlimited; Issuable in Series........................19
Section 302. Denominations...............................................22
Section 303. Execution, Authentication, Delivery and Dating..............22
Section 304. Temporary Securities........................................24
Section 305. Registration, Registration of Transfer and Exchange.........24
Section 306. Mutilated, Destroyed, Lost and Stolen Securities............26
Section 307. Payment of Interest; Interest Rights Preserved..............27
Section 308. Persons Deemed Owners.......................................28
Section 309. Cancellation................................................28
Section 310. Computation of Interest.....................................28
Section 311. CUSIP Numbers...............................................28
<PAGE>
ARTICLE IV. SATISFACTION AND DISCHARGE......................................29
Section 401. Satisfaction and Discharge of Indenture.....................29
Section 402. Application of Trust Money..................................30
ARTICLE V. REMEDIES 30
Section 501. Events of Default...........................................30
Section 502. Acceleration of Maturity; Rescission and Annulment..........33
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee..................................................34
Section 504. Trustee May File Proofs of Claim............................35
Section 505. Trustee May Enforce Claims Without Possession
of Securities...............................................35
Section 506. Application of Money Collected..............................35
Section 507. Limitation on Suits.........................................36
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest........................................37
Section 509. Restoration of Rights and Remedies..........................37
Section 510. Rights and Remedies Cumulative..............................37
Section 511. Delay or Omission Not Waiver................................37
Section 512. Control By Holders..........................................38
Section 513. Waiver of Past Defaults.....................................38
Section 514. Undertaking for Costs.......................................39
Section 515. Waiver of Stay or Extension Laws............................39
ARTICLE VI. THE TRUSTEE.....................................................39
Section 601. Certain Duties and Responsibilities....................39
Section 602. Notice of Defaults.....................................40
Section 603. Certain Rights of Trustee..............................40
Section 604. Not Responsible for Recitals or Issuance of Securities.41
Section 605. May Hold Securities....................................41
Section 606. Money Held in Trust....................................41
Section 607. Compensation and Reimbursement.........................42
Section 608. Conflicting Interests..................................42
Section 609. Corporate Trustee Required; Eligibility................43
Section 610. Resignation and Removal; Appointment of Successor......43
Section 611. Acceptance of Appointment by Successor.................44
Section 612. Merger, Conversion, Consolidation or
Succession to Business.................................45
Section 613. Preferential Collection of Claims Against Corporation..46
Section 614. Appointment of Authenticating Agent....................46
Section 615. Trustee's Application for Instructions
from the Corporation...................................47
ARTICLE VII. HOLDERS'LISTS AND REPORTS BY TRUSTEE AND CORPORATION...........48
Section 701. Corporation to Furnish Trustee Names and
Addresses of Holders...................................48
Section 702. Preservation of Information; Communications to Holders.48
<PAGE>
Section 703. Reports by Trustee.....................................49
Section 704. Reports by Corporation.................................49
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER.................49
Section 801. Corporation May Consolidate, Etc., Only on
Certain Terms..........................................49
Section 802. Successor Substituted..................................50
ARTICLE IX. SUPPLEMENTAL INDENTURES.........................................51
Section 901. Supplemental Indentures Without Consent of Holders.....51
Section 902. Supplemental Indentures With Consent of Holders........52
Section 903. Execution of Supplemental Indentures...................53
Section 904. Effect of Supplemental Indentures......................53
Section 905. Conformity with Trust Indenture Act....................53
Section 906. Reference in Securities to Supplemental Indentures.....54
Section 907. Subordination Unimpaired...............................54
ARTICLE X. COVENANTS 54
Section 1001. Payment of Principal, Premium and Interest............54
Section 1002. Maintenance of Office or Agency.......................54
Section 1003. Money for Securities Payments to Be Held in Trust.....55
Section 1004. Corporate Existence...................................56
Section 1005. Statement by Officers as to Default...................56
Section 1006. Waiver of Certain Covenants...........................56
Section 1007. Calculation of Original Issue Discount................57
ARTICLE XI. REDEMPTION OF SECURITIES........................................57
Section 1101. Applicability of Article..............................57
Section 1102. Election to Redeem; Notice to Trustee.................57
Section 1103. Selection by Trustee of Securities to Be Redeemed.....57
Section 1104. Notice of Redemption..................................58
Section 1105. Deposit of Redemption Price...........................59
Section 1106. Securities Payable on Redemption Date.................60
Section 1107. Securities Redeemed in Part...........................60
ARTICLE XII. SINKING FUNDS..................................................60
Section 1201. Applicability of Article..............................60
Section 1202. Satisfaction of Sinking Fund Payments with Securities.61
Section 1203. Redemption of Securities for Sinking Fund.............61
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE............................61
Section 1301. Applicability of Article..............................61
Section 1302. Defeasance and Discharge..............................62
Section 1303. Covenant Defeasance...................................62
Section 1304. Conditions to Defeasance or Covenant Defeasance.......63
<PAGE>
Section 1305. Deposited Money and Government Obligations
to Be Held in Trust; Miscellaneous Provisions.........64
ARTICLE XIV. SUBORDINATION..................................................64
Section 1401. Securities Subordinated to Senior Indebtedness........64
Section 1402. Disputes with Holders of Certain Senior Indebtedness..66
Section 1403. Subrogation...........................................67
Section 1404. Obligation of Corporation Unconditional...............67
Section 1405. Payments on Securities Permitted......................68
Section 1406. Effectuation of Subordination by Trustee..............68
Section 1407. Knowledge of Trustee..................................68
Section 1408. Trustee May Hold Senior Indebtedness..................69
Section 1409. Rights of Holders of Senior Indebtedness Not Impaired.69
Section 1410. Trust Moneys Not Subordinated.........................69
Section 1411. Article Applicable to Paying Agents...................70
Section 1412. Trustee; Compensation Not Prejudiced..................70
ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.70
Section 1501. Indenture and Securities Solely Corporate Obligations.70
Testimonium..................................................................65
Signatures and Seals.........................................................65
<PAGE>
INDENTURE, dated as of July 26, 1999, between Edison International, a
corporation duly organized and existing under the laws of the State of
California (herein called the "Corporation"), having its principal office at
2244 Walnut Grove Avenue, Rosemead, California 91770, and The Chase Manhattan
Bank, 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
1
<PAGE>
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Corporation
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means a day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in that Place of Payment or Los Angeles, California, are authorized or obligated
by law or executive order to remain closed or (iii) a day on which the Corporate
Trust Office of the Trustee is closed for business.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Corporation by any one of its Chairman of the Board,
its President, its Chief Financial Officer, any Vice President, its Treasurer or
any Assistant Treasurer, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 450 W. 33rd Street, 15th Floor,
New York, NY 10001.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
2
<PAGE>
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series which is issued to a Depositary or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or 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).
3
<PAGE>
"Officer's Certificate" means a certificate signed by any one of the
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer, any Vice President, the Treasurer, any Assistant Treasurer,
the Controller, an Assistant Controller, the Secretary or any Assistant
Secretary, of the Corporation, and delivered to the Trustee. One of the officers
signing an Officer's Certificate given pursuant to Section 1005 shall be the
principal executive, financial or accounting officer of the Corporation.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Corporation, or other counsel.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption the necessary amount of
money or money's worth has been theretofore deposited with the Trustee
or any Paying Agent (other than the Corporation) in trust or set aside
and segregated in trust by the Corporation (if the Corporation shall
act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee
proof satisfactory to it that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid obligations of the
Corporation;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be 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
4
<PAGE>
denominated in one or more foreign currencies or currency units which shall
be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as
of such date in the manner provided as contemplated by Section 301, of the
principal amount of such Security (or, in the case of a Security described in
Clause (A) or (B) above, of the amount determined as provided in such Clause),
and (D) Securities owned by the Corporation or any other obligor upon the
Securities or any Affiliate of the Corporation or of such other obligor, whether
of record or beneficially, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent, waiver or other action, only Securities which a Responsible Officer of
the Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Corporation or any other obligor upon the Securities or any Affiliate of the
Corporation or of such other obligor.
"Paying Agent" means any Person authorized by the Corporation to pay the
principal of or any premium or interest on any Securities on behalf of the
Corporation.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Corporation upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"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.
5
<PAGE>
"Responsible Officer," when used with respect to the Trustee, means any
vice president, assistant vice president, managing director, assistant
secretary, assistant treasurer, senior trust officer, assistant trust officer,
trust officer, or other officer associated with the corporate trust department
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of such person's knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means with respect to any series of Securities,
unless otherwise specified pursuant to Section 301 with respect thereto, the
principal of, and premium, if any, and interest on and any other payment in
respect of indebtedness due pursuant to any of the following, whether
outstanding at the date of execution of this Indenture or thereafter incurred,
created or assumed: (a) all indebtedness of the Corporation evidenced by notes,
debentures, bonds or other securities sold by the Corporation for money or other
obligations for money borrowed, (b) all indebtedness of others of the kinds
described in the preceding clause (a) assumed by or guaranteed in any manner by
the Corporation or in effect guaranteed by the Corporation through an agreement
to purchase, contingent or otherwise, and (c) all renewals, extensions or
refundings of indebtedness of the kinds described in either of the preceding
clauses (a) and (b), unless, in the case of any particular indebtedness,
renewal, extension or refunding, the instrument creating or evidencing the same
or the assumption or guarantee of the same by its terms provides that such
indebtedness, renewal, extension or refunding is not superior in right of
payment to or is pari passu with such Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the case of such
principal, as such date may be advanced or extended as provided pursuant to the
terms of such Security and this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
6
<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
Officer's 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.
7
<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,
Officer's 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 written 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 written instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Corporation. Such written instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders 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 Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Corporation, if made in the manner
provided in this Section.
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The fact and date of the execution by any Person of any such written
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 written 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 written instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Corporation
in reliance thereon, whether or not notation of such action is made upon such
Security.
The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series; provided that the
Corporation may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take or revoke the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Corporation from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Corporation, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders,
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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 made, given, furnished or filed in
writing (which may be made via facsimile) to or with the Trustee at
its Corporate Trust Office, Attention: Capital Markets Fiduciary
Services, or
(2) the Corporation by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to
the Corporation addressed to it at the address of its
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principal office specified in the first paragraph of this instrument,
Attention: Treasurer, or at any other address previously furnished in
writing to the Trustee by the Corporation.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver. In case by reason of the
suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
11
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Section 111. Benefits of Indenture.
Unless otherwise specified pursuant to Section 301 with respect to the
Securities of any series, 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 California, without regard to conflicts
of laws principles thereof, except that the rights, duties, indemnities and
immunities of the Trustee shall be governed by the laws of the State of New
York.
Section 113. Legal Holidays.
Unless otherwise specified pursuant to Section 301 with respect to the
Securities of any series, in any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a Business Day,
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 on such date, but may be made on the next
succeeding Business Day, unless that Business Day is in a different calendar
year, in which case the payment will be made on the preceding Business Day, in
each case, with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity.
Section 114. No Security Interest Created.
Nothing in this Indenture or in the Securities expressed or implied, shall
be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or hereafter enacted and in effect in any
jurisdiction where property of the Corporation or its subsidiaries is located.
ARTICLE II.
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
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<PAGE>
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 or an Officer's Certificate pursuant to Section 301 and delivered to
the Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
EDISON INTERNATIONAL
--------------------
$
No. CUSIP No.
Edison International, a corporation duly organized and existing under the
laws of the State of California (herein called the "Corporation," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ______________________, or registered
assigns, the principal sum of ________ Dollars on _________________________ [if
the Security is to bear interest prior to Maturity and interest payment periods
are not extendable, insert - , and to pay interest thereon from __________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, [insert - semi-annually, quarterly, monthly or other
description of the relevant payment period] on [________, ________,] and
__________ in each year, commencing _______________, at the rate of ____% per
annum, until the principal hereof is paid or made available for payment [if
applicable, insert - , provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
___% per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the [___________________] (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange
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on which the Securities of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ____% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue interest
shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Corporation maintained for that purpose in the City of New York,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts [if applicable,
insert - ; provided, however, that at the option of the Corporation payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or by wire
transfer at such place and to such account at a banking institution in the
United States as may be designated in writing to the Trustee at least sixteen
(16) days prior to the date for payment by the Person entitled thereto].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated at Date of Authentication: EDISON INTERNATIONAL
By
----------------------------
Attest:
- ------------------------------------
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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 a Subordinated 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 Chase Manhattan Bank, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitation of rights, duties and immunities
thereunder of the Corporation, the Trustee, the holders of the Senior
Indebtedness and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [if applicable, insert - , limited
in aggregate principal amount to $__________].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert -
(1) on ____________ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert - on or after ___________, ____], as a whole or in part, at
the election of the Corporation, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [if applicable, insert - on
or before _________________, ___%, and if redeemed] during the 12-month period
beginning _________ of the years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ______ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after _____________], as a whole or in part, at the
election of the Corporation, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12- month
period beginning ________ of the years indicated,
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Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- -------------------- ----------------------
and thereafter at a Redemption Price equal to _____% of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Corporation may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Corporation
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on __________ in each year beginning with the year _______ and ending
with the year ______ of [if applicable, insert - not less than $___________
("mandatory sinking fund") and not more than] $____________ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Corporation otherwise than through [if applicable, insert -
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
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[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The indebtedness represented by the Securities of this series is, to the
extent and in a manner set forth in the Indenture, expressly subordinated in
right of payment to the prior payment in full of all Senior Indebtedness, as
defined in the Indenture, with respect to this series, and this Security is
issued subject to such provisions, and each Holder of this Security, by
acceptance thereof, agrees to and shall be bound by such provisions and
authorizes and directs the Trustee in his, her or its behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in the Indenture and appoints the Trustee his, her or its attorney-in-fact, as
the case may be, for any and all such purposes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of all series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
of all series at the time Outstanding affected thereby (voting as one class).
The Indenture contains provisions permitting the Holders of not less than a
majority in principal amount of the Securities of all series at the time
Outstanding with respect to which a default under the Indenture shall have
occurred and be continuing (voting as one class), on behalf of the Holders of
the Securities of all such series, to waive, with certain exceptions, such past
default with respect to all such series and its consequences. The Indenture also
permits the Holders of not less than a majority in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Corporation with
certain provisions of the Indenture. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 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 and offered the Trustee indemnity satisfactory to it, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of
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<PAGE>
such notice, request and offer of indemnity. The foregoing shall not apply
to any suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Corporation, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Corporation in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of [$1,000 and any integral multiple thereof]. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Corporation may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Indenture and the Securities issued hereby shall be governed by and
construed in accordance with the laws of the State of California, except that
the rights, duties, indemnities and immunities of the Trustee shall be governed
by the laws of the State of New York.
Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
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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 Chase Manhattan Bank,
-------------------- 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 manner provided, in
an Officer's 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
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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, 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;
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(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 (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;
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(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 Officer's 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 Officer's
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), Officer's Certificate or
supplemental indenture referred to above may provide general terms or parameters
for Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order or
that such terms shall be determined by the Corporation in accordance with other
procedures specified in a Company Order as contemplated by the third paragraph
of Section 303.
Notwithstanding Section 301(2) herein and unless otherwise expressly
provided with respect to a series of Securities, the aggregate principal amount
of a series of Securities may be increased and additional Securities of such
series may be issued up to the maximum aggregate principal amount authorized
with respect to such series as increased.
Section 302. Denominations.
The Securities of each series shall be issuable only in fully registered
form without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Corporation by its
Chairman of the Board, its Chief Executive Officer, its President, a Vice
President or the Treasurer, under its corporate seal reproduced thereon (which
may be by facsimile) attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
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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 issued and executed by the Corporation and
when authenticated and delivered by the Trustee in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Corporation
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
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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 Officer's 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.
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
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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 legal, valid and binding obligations of the Corporation,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1106 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed, the Corporation shall not be required (A) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption and ending at the close of business on
the day of such
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mailing, or (B) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary has notified the Corporation that it is unwilling or unable
to continue as Depositary for such Global Security and a successor
Depositary has not been appointed by the Corporation within 90 days of
receipt by the Corporation of such notification, (B) if at any time
the Depositary ceases to be a clearing agency registered under the
Exchange Act at a time when the Depositary is required to be so
registered to act as such Depositary and no successor Depositary shall
have been appointed by the Corporation within 90 days after it became
aware of such cessation, or (C) there shall exist such circumstances,
if any, in addition to or in lieu of the foregoing as have been
specified for this purpose as contemplated by Section 301.
Notwithstanding the foregoing, the Corporation may at any time in its
sole discretion determine that Securities issued in the form of a
Global Security shall no longer be represented in whole or in part by
such Global Security, and the Trustee, upon receipt of a Company Order
therefor, shall authenticate and deliver definitive Securities in
exchange in whole or in part for such Global Security.
(3) Subject to Clause (2) above, any exchange or transfer of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for or upon transfer of a Global
Security or any portion thereof shall be registered in such names as
the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 304,
306, 906 or 1106 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such
Global Security or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Corporation
shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
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If there shall be delivered to the Corporation and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Corporation or the Trustee that such Security has been acquired by a bona fide
purchaser, the Corporation shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax, fee, assessment or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and its agents and
counsel) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Corporation, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Corporation, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
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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 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.
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Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Corporation may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Corporation may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Corporation has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in its customary manner or
as directed by a Company Order; provided, however, that the Trustee shall not be
required to destroy such canceled Securities.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money
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has theretofore been deposited in trust or segregated and held in
trust by the Corporation and thereafter repaid to the Corporation
or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Corporation, and the Corporation, in the
case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for
the purpose (i) money in an amount, (ii) Government
Obligations (as defined in Section 1304) which through the
scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount,
or (iii) a combination thereof, sufficient, in the case of
(ii) or (iii), in the opinion of a nationally recognized
firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee
to pay and discharge, the entire indebtedness on such
Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Corporation 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 Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Trustee under Section 607, the obligations
of the Corporation to any Authenticating Agent under Section 614 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of Clause
(1) of this Section, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003 shall survive.
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Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent), to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE V.
REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is inapplicable to a particular series or is specifically deleted or
modified in the Board Resolution (or action taken pursuant thereto), Officer's
Certificate or supplemental indenture under which such series of Securities is
issued or has been deleted or modified in an indenture supplemental hereto:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such
default for a period of 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, and continuance of such
default for a period of 60 days; or
(4) default in the performance, or breach, of any covenant of the
Corporation in this Indenture (other than a covenant a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified
mail, to the Corporation by the Trustee or to the Corporation and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it
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to be remedied and stating that such notice is a "Notice of Default"
hereunder, unless the Trustee, or the Trustee and the Holders of a
principal amount of Securities of such series not less than the
principal amount of Securities the Holders of which gave such notice,
as the case may be, shall agree in writing to an extension of such
period prior to its expiration; provided, however, that the Trustee,
or the Trustee and the Holders of such principal amount of Securities
of such series, as the case may be, shall be deemed to have agreed to
an extension of such period if corrective action is initiated by the
Corporation within such period and is being diligently pursued; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Corporation in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Corporation a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Corporation under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Corporation or of any substantial part
of its property, or ordering the winding-up or liquidation of its
affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of
90 consecutive days; or
(6) the commencement by the Corporation of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Corporation in
an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Corporation or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the authorization of any such action by the
Board of Directors; or
(7) any other Event of Default provided with respect to Securities of that
series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the
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terms thereof) to be due and payable immediately, by a notice in writing to
the Corporation (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) shall become immediately
due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Corporation and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Corporation has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in
such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Corporation covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 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
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and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
If the Corporation fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums 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 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 proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Corporation (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 607;
Second: Subject to Article XIV, to the payment of the amounts then due and
unpaid for principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively; and
Third: To the payment of the balance, if any, to the Corporation.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of all affected series, considered as one
class, or, in the case of an Event of Default of the character
specified above in Section 501(1), (2) or (3), that series, shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(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 all affected series,
considered as one class, or, in the case of an Event of Default of the
character specified above in Section 501(1), (2) and (3), that series,
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Corporation, the 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.
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Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control By Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series; provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in
personal liability.
If an Event of Default is continuing with respect to all Outstanding
Securities, the Holders of a majority in principal amount of all the Outstanding
Securities, considered as one class, shall have the right to make such
direction, and not the Holders of Securities of any one series.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all series with respect to which any default under the
Indenture shall have occurred and be continuing (voting as one class) may, on
behalf of the Holders of all Securities of all such series, waive such past
default under the Indenture and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of
each Outstanding Security of the series affected.
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Upon any such waiver, such default shall cease to exist and be deemed not
to have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs, including legal fees and expenses of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in (i) any suit
instituted by the Trustee, (ii) any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or (iii) any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest 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 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.
ARTICLE VI.
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
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Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Corporation mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein, and any resolution of the Board
of Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate
and such Officer's Certificate shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof;
(4) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document;
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(7) the Trustee shall not be liable for the observance as a Business Day
of a day on which banking institutions in Los Angeles, California (but
not the banking institutions in the Place of Payment), are authorized
or obligated by law or executive order to remain closed if the Trustee
does not have actual knowledge that banking institutions in Los
Angeles, California, are authorized or obligated by law or executive
order to remain closed on such day; and
(8) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Corporation.
Section 607. Compensation and Reimbursement.
The Corporation agrees
(1) to pay to the Trustee from time to time such compensation as shall be
agreed to in writing between the Corporation and the Trustee for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable
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compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith; and
(3) to indemnify and defend the Trustee and its officers, directors,
employees, representatives and agents for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense,
including taxes (other than taxes based on the income of the Trustee)
of whatever kind or nature regardless of their merit incurred without
negligence, willful misconduct or bad faith on its part, arising out
of or in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of defending
itself against any claim whether asserted by the Corporation, a Holder
or any other Person and all reasonable attorneys fees, consultants
fees, expenses and court costs or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all property and
funds held by it hereunder for any amount owing it or any predecessor Trustee
pursuant to this Section 607, except with respect to funds held in trust for the
benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the earlier resignation or removal of the Trustee.
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
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with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Corporation. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Corporation, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Corporation. Upon such removal, the Corporation may petition, at its expense,
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Corporation or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Corporation or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Corporation by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Corporation, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
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Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Corporation and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Corporation. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Corporation or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Corporation shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Corporation or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Corporation, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3)
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shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Corporation shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case 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
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behalf of the Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided that such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Corporation and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Corporation agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
------------------- The Chase Manhattan Bank,
As Trustee
By:
----------------------------
As Authenticating Agent
By:
-------------------------
Authorized Signatory
Section 615. Trustee's Application for Instructions from the Corporation.
Any application by the Trustee for written instructions from the
Corporation may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable to the Corporation for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
Corporation actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders.
The Corporation will furnish or cause to be furnished to the Trustee
(1) 15 days after each Regular Record Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of such Regular Record Date,
and
(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;
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excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Corporation and the Trustee that neither the Corporation nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture, deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Corporation. The
Corporation will promptly notify the Trustee when any Securities are listed on
any stock exchange or any delisting thereof.
Section 704. Reports by Corporation.
The Corporation shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission. Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
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ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Corporation May Consolidate, Etc., Only on Certain Terms.
The Corporation shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Corporation or convey, transfer or lease its properties and assets substantially
as an entirety to the Corporation, unless:
(1) in case the Corporation shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Corporation is merged or the Person
which acquires by conveyance or transfer, or which leases, the
properties and assets of the Corporation substantially as an entirety
shall be a corporation, partnership, limited liability company or
trust organized and existing under the laws of the United States of
America or any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant
of this Indenture on the part of the Corporation to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice of lapse of time, or both,
would become an Event of Default, shall have occurred and be
continuing;
(3) such other conditions as may be specified pursuant to Section 301 with
respect to the Securities of any series shall have been satisfied; and
(4) the Corporation shall deliver to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance or transfer and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with; and the Trustee, subject to Section 601, may rely upon such
Officer's Certificate and Opinion of Counsel as conclusive evidence
that such transaction complies with this Section 801.
Section 802. Successor Substituted.
Upon any consolidation of the Corporation with, or merger of the
Corporation into, any other Person or any conveyance or transfer of the
properties and assets of the Corporation as an entirety or substantially as an
entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Corporation is merged or to which such
conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Corporation under this Indenture with the
same effect as if such successor
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Person had been named as the Corporation herein, and thereafter the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Securities.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of the Corporation, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the
Corporation and delivered to the Trustee; and, upon the order of such successor
Person instead of the Corporation, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Corporation to the Trustee for authentication
pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
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,
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registrable or not registrable as to principal, and with or without
interest coupons, or to facilitate the issuance of Securities in
uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities; provided that any such
addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with
respect to such provision or (B) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action
pursuant to this Clause (9) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of all series affected by such supplemental
indenture (voting as one class), by Act of said Holders delivered to the
Corporation and the Trustee, the Corporation, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture, or modifying in any manner the rights of the Holders of
Securities under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security (other than pursuant to the
terms of such Security), or reduce the principal amount thereof or the
rate of interest thereon or any premium payable upon the redemption
thereof, or reduce the amount of the principal of an Original Issue
Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 or change the coin or currency in which any Security or
any premium or interest thereon is
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payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section and Section 1006, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in conclusively relying
upon, an Opinion of Counsel and an Officer's Certificate stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture and all, if any, conditions precedent have been complied with. 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.
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Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Corporation, to any such supplemental indenture
may be prepared and executed by the Corporation and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
Section 907. Subordination Unimpaired.
This Indenture may not be amended to alter the subordination of any of the
Outstanding Securities without the written consent of each holder of Senior
Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
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
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such designation or rescission shall in any manner relieve the Corporation
of its obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Corporation will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Corporation shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Corporation will promptly notify the Trustee of its action or
failure so to act.
The Corporation will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) hold all sums held by it for
the payment of the principal of (and premium, if any) or interest on Securities
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided, (2) give
the Trustee notice of any default by the Corporation (or any other obligor upon
the Securities) in the making of any payment of principal (and premium, if any)
or interest, (3) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (4) 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
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then held by the Corporation) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Corporation for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Corporation as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Corporation cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, New York, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Corporation.
Section 1004. Corporate Existence.
Subject to Article Eight, the Corporation will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises.
Section 1005. Statement by Officers as to Default.
The Corporation will deliver to the Trustee, on or before October 15 of
each calendar year or on or before such other day in each calendar year as the
Corporation and the Trustee may from time to time agree upon, an Officer's
Certificate, stating whether or not to the best knowledge of the signers thereof
the Corporation is in default in the performance and observance of any of the
terms, provisions and conditions of this Indenture (without regard to any period
of grace or requirement of notice provided hereunder) and, if the Corporation
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 1006. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Corporation may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(19), 901(2)
or 901(7) for the benefit of the Holders of such series if before the time for
such compliance the Holders of not less than a majority in principal amount of
the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Corporation and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
Section 1007. Calculation of Original Issue Discount.
The Corporation shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual
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periods) accrued on Outstanding Securities as of the end of such year and
(ii) such other specific information relating to such original issue discount as
may then be relevant under the Internal Revenue Code of 1986, as amended from
time to time.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Corporation to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Corporation, the Corporation shall, at least 45 days prior to the Redemption
Date fixed by the Corporation (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if applicable, of the
tenor of the Securities to be redeemed. In the case of any redemption of
Securities (A) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (B)
pursuant to an election of the Corporation which is subject to a condition
specified in the terms of such Securities or elsewhere in this Indenture, the
Corporation shall furnish the Trustee with an Officer's Certificate evidencing
compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series; provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number(s)) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series and of a
specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption
of any such Securities, the principal amounts) of the particular
Securities to be redeemed and, if less than all the Outstanding
Securities of any series and of a specified tenor consisting of a
single Security are to be redeemed, the principal amount of the
particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price and accrued interest, if any, unless
it shall have been specified as contemplated by Section 301 with
respect to such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case; and
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(7) such other matters as the Corporation shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in accordance
with Section 301, with respect to any redemption of Securities at the election
of the Corporation, unless, upon the giving of notice of such redemption,
Defeasance shall have been effected with respect to such Securities pursuant to
Section 1302, such notice may state that such redemption shall be conditional
upon the receipt by the Trustee or the Paying Agent(s) for such Securities, on
or prior to the date fixed for such redemption, of money sufficient to pay the
principal of and any premium and interest on such Securities and that if such
money shall not have been so received such notice shall be of no force or effect
and the Corporation shall not be required to redeem such Securities. In the
event that such notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a reasonable time
thereafter notice shall be given, in the manner in which the notice of
redemption was given, that such money was not so received and such redemption
was not required to be made, and the Trustee or Paying Agent(s) for the
Securities otherwise to have been redeemed shall promptly return to the Holders
thereof any of such Securities which had been surrendered for payment upon such
redemption.
Notice of redemption of Securities to be redeemed at the election of the
Corporation, and any notice of non-satisfaction of redemption as aforesaid,
shall be given by the Corporation or, at the Corporation's request, by the
Trustee in the name and at the expense of the Corporation. Subject to the
preceding paragraph, any such notice of redemption shall be irrevocable.
Section 1105. Deposit of Redemption Price.
On or prior to the Redemption Date specified in the notice of redemption
given as provided in Section 1104, the Corporation will deposit with the Trustee
or with one or more Paying Agents (or if the Corporation is acting as its own
Paying Agent, the Corporation will segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption Price of, and
any accrued interest on, all the Securities which are to be redeemed on that
date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, and the conditions, if
any, set forth in such notice having been satisfied, the Securities or portions
thereof so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified, and from and after such date (unless,
in the case of an unconditional notice of redemption, the Corporation shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance with
said notice, such Security or portion thereof shall be paid by the Corporation
at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that no such surrender shall be a condition
to such payment if so specified as contemplated by Section 301 with respect to
such Security, and provided further that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close
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of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Corporation or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Corporation and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Corporation shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series and of like
tenor, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE XII.
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Corporation (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Corporation pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as
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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 Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and stating the basis for such credit and that such Securities have
not been previously so credited and will also deliver to the Trustee any
Securities to be so delivered. Not less than 30 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Corporation in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1105 and 1106.
ARTICLE XIII.
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Applicability of Article.
Unless, pursuant to Section 301, provision is made that either or both of
(A) defeasance of any Securities or any series of Securities under Section 1302
and (B) covenant defeasance of any Securities or any series of Securities under
Section 1303 shall not apply to such Securities of a series, then the provisions
of either or both of Sections 1302 and Section 1303, as the case may be,
together with Sections 1304 and 1305, shall be applicable to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article.
Section 1302. Defeasance and Discharge.
The Corporation may cause itself to be discharged from its obligations with
respect to any Securities or any series of Securities on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Corporation
shall be deemed to have paid and discharged the entire indebtedness represented
by such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Corporation, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when payments are due, (2) the
Corporation's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003 and with respect to the Trustee under Section 607, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder
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and (4) this Article. Subject to compliance with this Article, Defeasance
with respect to any Securities or any series of Securities 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.
The Corporation may cause itself to be released from its obligations under
any covenants provided pursuant to Section 301(19), 901(2), 901(6) or 901(7)
with respect to any Securities or any series of Securities for the benefit of
the Holders of such Securities and the occurrence of any event specified in
Sections 501(4) (with respect to any such covenants provided pursuant to Section
301(19), 901(2), 901(6) or 901(7)) or 501(7) shall be deemed not to be or result
in an Event of Default with respect to such Securities as provided in this
Section, in each case on and after the date the conditions set forth in Section
1304 are satisfied (hereinafter called "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means that, with respect to such Securities, the
Corporation may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Corporation shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) Government Obligations
which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the case of (B) or (C), in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee to pay and discharge, the principal of and any premium and
interest on such Securities on the respective Stated Maturities or on
any Redemption Date established pursuant to Clause (3) below, in
accordance with the terms of this Indenture and such Securities. As
used herein, "Government Obligation" means (x) any security which is
(i) a direct obligation of the United States of America or the
government which issued the foreign currency in which such Securities
are payable, for the payment of which its full faith and credit is
pledged or (ii) an obligation of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of
America or such government which issued the foreign currency in which
such Securities are payable, the payment of
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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 orthe specific payment of principal or interest
evidenced by such depositary receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of
such deposit or, with regard to any such event specified in Sections
501(5) and (6), at any time on or prior to the 90th day after the date
of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 90th day).
(3) If the Securities are to be redeemed prior to Stated Maturity (other
than from mandatory sinking fund payments or analogous payments),
notice of such redemption shall have been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee shall have
been made.
(4) The Corporation shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
Section 1305. Deposited Money and Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Corporation acting as its own Paying Agent), 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.
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Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
ARTICLE XIV.
SUBORDINATION
Section 1401. Securities Subordinated to Senior Indebtedness.
Except as otherwise specified as contemplated by Section 301 for any series
of Securities, the Corporation covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Securities of any series and the payment of the
principal of and any premium or interest on each and all of the Securities of
each series is subordinate, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness. Senior Indebtedness shall continue to be Senior Indebtedness and
entitled to the benefits of these subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Indebtedness or
extension or renewal of the Senior Indebtedness.
In the event (a) of any payment by, or distribution of assets of, the
Corporation of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution, winding-up, liquidation or reorganization of
the Corporation, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, or (b) subject to the provisions of Section
1402 that (i) a default shall have occurred and be continuing with respect to
the payment of principal, interest or any other monetary amounts due and payable
on any Senior Indebtedness and such default shall have continued beyond the
period of grace, if any, specified in the instrument evidencing such Senior
Indebtedness (and the Trustee shall have received written notice thereof from
the Corporation or one or more holders of Senior Indebtedness or their
representative or representatives or the trustee or trustees under any indenture
pursuant to which any such Senior Indebtedness may have been issued), or (ii)
the maturity of any Senior Indebtedness shall have been accelerated because of a
default in respect of such Senior Indebtedness (and the Trustee shall have
received written notice thereof from the Corporation or one or more holders of
Senior Indebtedness or their representative or representatives or the trustee or
trustees under any indenture pursuant to which any such Senior Indebtedness may
have been issued), then:
(i) the holders of all Senior Indebtedness shall first be entitled to
receive, in the case of (a) above, payment of all amounts due or to
become due upon all Senior Indebtedness and, in the case of subclauses
(i) and 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
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account of the principal of or any premium or interest on the
indebtedness evidenced by the Securities, including, without
limitation, anypayments made pursuant to Article Eleven or Article
Twelve;
(ii) any payment by, or distribution of assets of, the Corporation of any
kind or character, whether in cash, property or securities, to which
the Holders of any of the Securities would be entitled except for the
provisions of this Article, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any
other indebtedness of the Corporation being subordinated to the
payment of such Securities, shall be paid or delivered by the Person
making such payment or distribution, whether a trustee in bankruptcy,
a receiver or liquidating trustee or otherwise, directly to the
holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full
of all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any payment or
distribution is made to the Holders of the indebtedness evidenced by
such Securities; and
(iii) in the event that, notwithstanding the foregoing, any payment by, or
distribution of assets of, the Corporation of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Corporation being
subordinated to the payment of such Securities, in respect of
principal of or any premium or interest on any of the Securities or in
connection with the repurchase by the Corporation of any of the
Securities, shall be received by the Trustee or the Holders of any of
the Securities when such payment or distribution is prohibited
pursuant to this Section, such payment or distribution shall be paid
over to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any such
Senior Indebtedness may have been issued, ratably as aforesaid, for
application to the payment of all Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution (or provision
therefor) to the holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 90th day following the
date of deposit of money or Government Obligations pursuant to Section 1304
(provided all other conditions set out in such Section shall have been
satisfied) the funds so deposited and any interest thereon will not be subject
to any rights of holders of Senior Indebtedness including, without limitation,
those arising under this Article.
For purposes of this Article Fourteen, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Corporation as
reorganized or readjusted, or securities of the Corporation or any other Person
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article with respect to
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the Securities to the payment of all Senior Indebtedness which may at the time
be outstanding; provided that (i) the indebtedness or guarantee of indebtedness,
as the case may be, that constitutes Senior Indebtedness is assumed by the
Person, if any, resulting from any such reorganization or readjustment, and (ii)
the rights of the holders of the Senior Indebtedness are not, without the
consent of each such holder adversely affected thereby, altered by such
reorganization or readjustment. The consolidation of the Corporation with, or
the merger of the Corporation into, another Person or the liquidation or
dissolution of the Corporation following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another Person upon
the terms and conditions provided for in Article Eight hereof shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section if such other Person shall, as part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Eight hereof.
Section 1402. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Corporation to make any payment on or perform any other
obligation under Senior Indebtedness, other than any indebtedness incurred by
the Corporation or assumed or guaranteed, directly or indirectly, by the
Corporation for money borrowed (or any deferral, renewal, extension or refunding
thereof) or any indebtedness or obligation as to which the provisions of this
Section shall have been waived by the Corporation in the instrument or
instruments by which the Corporation incurred, assumed, guaranteed or otherwise
created such indebtedness or obligation, shall not be deemed a default or event
of default under Section 1401(b) if (i) the Corporation shall be disputing its
obligation to make such payment or perform such obligation and (ii) either (A)
no final judgment relating to such dispute shall have been issued against the
Corporation which is in full force and effect and is not subject to further
review, including a judgment that has become final by reason of the expiration
of the time within which a party may seek further appeal or review, and (B) in
the event of a judgment that is subject to further review or appeal has been
issued, the Corporation shall in good faith be prosecuting an appeal or other
proceeding for review and a stay of execution shall have been obtained pending
such appeal or review.
Section 1403. Subrogation.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities shall be subrogated (equally and ratably with the holders of all
obligations of the Corporation which by their express terms are subordinated to
Senior Indebtedness of the Corporation to the same extent as the Securities are
subordinated and which are entitled to like rights of subrogation) to the rights
of the holders of Senior Indebtedness to receive payments or distributions of
cash, property or securities of the Corporation applicable to the Senior
Indebtedness until all amounts owing on the Securities shall be paid in full,
and as between the Corporation, its creditors other than holders of such Senior
Indebtedness and the Holders, no such payment or distribution made to the
holders of Senior Indebtedness by virtue of this Article that otherwise would
have been made to the Holders shall be deemed to be a payment by the Corporation
on account of such Senior Indebtedness, it being understood that the provisions
of 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.
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Section 1404. Obligation of Corporation Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Corporation, its
creditors other than the holders of Senior Indebtedness and the Holders, the
obligation of the Corporation, which is absolute and unconditional, to pay to
the Holders the principal of and any premium or interest on the Securities as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders and
creditors of the Corporation other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities of the
Corporation received upon the exercise of any such remedy.
Upon payment or distribution of assets of the Corporation referred to in
this Article, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any such
dissolution, winding-up, liquidation or reorganization proceeding affecting the
affairs of the Corporation is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee
or agent or other person making any payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Corporation, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee or
representative on behalf of any such holder or holders. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and, if
such evidence is not furnished, the Trustee may defer payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 1405. Payments on Securities Permitted.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities shall affect the obligations of the Corporation to make, or prevent
the Corporation from making, 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.
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Section 1406. Effectuation of Subordination by Trustee.
Each Holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee in his, her or its behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his, her or its attorney-in-fact, as the case
may be, for any and all such purposes.
Section 1407. Knowledge of Trustee.
The Corporation shall give prompt written notice to the Trustee of any fact
known to the Corporation which would prohibit the making of any payment of
moneys to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article. Notwithstanding the provisions of this Article or
any other provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of moneys to or by the Trustee, or the taking of any other action by the
Trustee, unless and until the Trustee shall have received written notice thereof
mailed or delivered to the Trustee at its Corporate Trust Office from the
Corporation, any Holder, any paying agent or the holder or representative of any
Senior Indebtedness; provided that if at least two Business Days prior to the
date upon which by the terms hereof any such moneys may become payable for any
purpose (including, without limitation, the payment of the principal or any
premium or interest on any Security) the Trustee shall not have received with
respect to such moneys the notice provided for in this Section, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such moneys and to apply the same to the purpose
for which they were received and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to or on or
after such date.
Section 1408. Trustee May Hold Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness at the time
held by it, to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its rights as such
holder.
Section 1409. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Corporation or by
any noncompliance by the Corporation with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (i) the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture; (ii) the Trustee 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.
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Section 1410. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
money or Government Obligations held in trust under Article Four or Article
Thirteen by the Trustee for the payment of principal of and any premium or
interest on the Securities of any series shall not be subordinated to the prior
payment of any Senior Indebtedness of the Corporation or subject to the
restrictions set forth in this Article and none of the Holders shall be
obligated to pay over any such amount to the Corporation or any holder of Senior
Indebtedness or any other creditor of the Corporation.
Section 1411. Article Applicable to Paying Agents.
In case at any time any paying agent other than the Trustee shall have been
appointed by the Corporation and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such paying agent within its
meaning as fully for all intents and purposes as if such paying agent were named
in this Article in addition to or in place of the Trustee; provided, however,
that Sections 1407 and 1408 shall not apply to the Corporation if it acts as its
own paying agent.
Section 1412. Trustee; Compensation Not Prejudiced.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee pursuant to Section 607.
ARTICLE XV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1501. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
EDISON INTERNATIONAL
By
------------------------
Mary C. Simpson
Assistant Treasurer
Attest:
THE CHASE MANHATTAN BANK,
as Trustee
By
------------------------
Authorized Signatory
Attest:
EDISON INTERNATIONAL
TO
THE CHASE MANHATTAN BANK,
AS TRUSTEE
SUPPLEMENTAL INDENTURE NO. 1
Dated as of July 26, 1999
$592,783,600
7.875% Subordinated Deferrable Interest Notes,
Series A
<PAGE>
EDISON INTERNATIONAL
$592,783,600
7.875% Subordinated Deferrable Interest Notes,
Series A
SUPPLEMENTAL INDENTURE NO. 1
SUPPLEMENTAL INDENTURE No. 1, dated as of July 26, 1999,
between Edison International, a California corporation (the "Corporation"), and
The Chase Manhattan Bank, a New York banking corporation, as Trustee (the
"Trustee").
RECITALS
The Corporation and the Trustee have heretofore executed a
Subordinated Indenture, dated as of July 26, 1999 (the "Subordinated
Indenture"), providing for the issuance from time to time of series of the
Corporation's Securities.
Section 301 of the Subordinated Indenture provides for various
matters with respect to any series of Securities issued under the Subordinated
Indenture to be established in an indenture supplemental to the Subordinated
Indenture.
Section 901 of the Subordinated Indenture provides for the
Corporation and the Trustee to enter into an indenture supplemental to the
Subordinated Indenture to establish the form or terms of Securities of any
series as provided by Sections 201 or 301 of the Subordinated Indenture.
For and in consideration of the premises and the issuance of
the series of Securities provided for herein, it is mutually covenanted and
agreed, for the equal and proportionate benefit of the Holders of the Securities
of such series, as follows:
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
Section 1.1. This Supplemental Indenture No. 1 constitutes an integral part
of the Subordinated Indenture.
Section 1.2. For all purposes of this Supplemental Indenture No. 1, except
as otherwise expressly provided or unless the context otherwise requires:
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(1) capitalized terms used herein without definition shall have the
meanings specified in the Subordinated Indenture or in the Trust Agreement, as
the case
may be;
(2) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(3) 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;
(4) 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;
(5) 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
Supplemental Indenture No. 1; and
(6) the words "herein", "hereof', "hereunder" and other words of similar
import refer to this Supplemental Indenture No. 1 as a whole and not to any
particular Article, Section or other subdivision.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Series A Securities the payment of which has not been made on
the applicable Interest Payment Date and which shall accrue at the rate per
annum as specified in Section 2.5 hereof. Whenever in the Subordinated
Indenture, this Supplemental Indenture No. 1 or the Series A Securities there is
a reference in any context to the payment of interest on the Series A
Securities, such mention shall be deemed to include mention of the payments of
the Additional Interest to the extent that Additional Interest is payable on the
Series A Securities and express mention of the payment of Additional Interest
(if applicable) in any provisions hereof shall not be construed as excluding
Additional Interest in those provisions hereof where such express mention is not
made.
"Additional Sums" shall have the meaning specified in Section 2.9 hereof.
"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which EIX Trust I has become subject from time to time
as a result of a Tax Event.
"Allocable Amounts," when used with respect to any Senior Indebtedness,
means all amounts due or to become due on such Senior Indebtedness less, if
applicable, any amount which would have been paid to, and retained by, the
holders of such Senior Indebtedness (whether as a result of the receipt of
payments by the holders of such Senior Indebtedness from the Corporation or any
other obligor thereon or from any holders of, or trustee in respect of, other
indebtedness that is subordinate and junior in right of
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payment to such Senior Indebtedness pursuant to any provision of such
indebtedness for the payment over of amounts received on account of such
indebtedness to the holders of such Senior Indebtedness or otherwise) but for
the fact that such Senior Indebtedness by its terms is subordinate or junior in
right of payment to (or subject to a requirement that amounts received on such
Senior Indebtedness be paid over to obligees on) trade accounts payable or
accrued liabilities arising in the ordinary course of business.
"Extension Period" shall have the meaning specified in Section 2.6 hereof.
"Indebtedness" means, with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of this
Supplemental Indenture No. 1 or thereafter incurred, for claims in respect of
derivative products, including interest rate, foreign exchange rate and
commodity forward contracts, options and swaps and similar arrangements; and
(vii) every obligation of the type referred to in clauses (i) through (vi) of
another Person and all dividends and operating lease payments of another Person
the payment of which, in either case, such Person has guaranteed or is
responsible or liable for, directly or indirectly, as obligor or otherwise.
"Interest Payment Date" shall have the meaning specified in Section 2.5
hereof.
"Investment Company Act Event" means that EIX Trust I shall have received
an Opinion of Counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a written change in
the interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that EIX Trust I is or will be considered an "investment
company" that is required to be registered under the Investment Company Act of
1940, as amended, which change becomes effective on or after July
21, 1999.
"junior securities" shall have the meaning specified in Section 3.15
hereof.
"Moody's" means Moody's Investors Service, Inc.
"Proceeding" shall have the meaning specified in Section 3.2 hereof.
"Regular Record Date" means, for the interest payable on any Interest
Payment Date, (i) in the case of Series A Securities represented by one or more
Global Securities, the Business Day next preceding such Interest Payment Date
and (ii) in the case of Series A Securities not represented by one or more
Global Securities, the date which is fifteen days next preceding such Interest
Payment Date (whether or not a Business Day).
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"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"Senior Indebtedness" means, with respect to the Series A Securities, the
principal of (and premium, if any) and interest, if any (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Corporation, whether or not such claim for
post-petition interest is allowed in such proceeding), on Indebtedness of the
Corporation, whether incurred on or prior to the date of this Supplemental
Indenture No. 1 or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are not superior in right of payment to the Series A
Securities or to other Indebtedness which is pari passu with, or subordinated
to, the Series A Securities; provided, however, that Senior Indebtedness shall
not include (a) any Indebtedness of the Corporation which, when incurred and
without respect to any election under Section 1111(b) of the Bankruptcy Reform
Act of 1978, was without recourse to the Corporation, (b) any Indebtedness of
the Corporation to any of its subsidiaries, (c) any Indebtedness of the
Corporation to any of its employee not incurred in the ordinary course of
business, or (d) any Series A Securities.
"Series A Securities" shall have the meaning specified in Section 2.1
hereof.
"Special Event" means an Investment Company Act Event or a Tax Event.
"Subordinated Payment" shall have the meaning specified in Section 3.2
hereof.
"Tax Event" means the receipt by EIX Trust I of an Opinion of 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, whether or not such pronouncement or judicial decision is
issued to or in connection with a proceeding involving the Corporation or EIX
Trust I or is subject to review or appeal, which amendment or change is
effective or which pronouncement or decision is announced on or after July 21,
1999 there is more than an insubstantial risk that (i) EIX Trust I is, or will
be within 90 days of the date of such Opinion of Counsel, subject to United
States federal income tax with respect to income received or accrued on the
Series A Securities, (ii) interest payable by the Corporation or original issue
discount accruing on the Series A Securities is not, or within 90 days of the
date of such Opinion of Counsel, will not be, deductible by the Corporation,
in whole or in part, for United States federal income tax purposes or (iii) EIX
Trust I is, or will be within 90 days of the date of such Opinion of Counsel,
subject to more than a minimal amount of other taxes, duties or other
governmental charges.
"Trust Agreement" means that certain Amended and Restated Trust Agreement,
dated as of July 26, 1999, among the Corporation, as Depositor, The Chase
Manhattan Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware
Trustee, and the Regular Trustees named therein.
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ARTICLE 2
THE SERIES OF SECURITIES
Section 2.1. Title of the Series A Securities. There shall be a series of
Securities designated the "7.875% Subordinated Deferrable Interest Notes, Series
A" (the "Series A Securities").
Section 2.2. Limitation on Aggregate Principal Amount; Date of Series A
Securities. The aggregate principal amount of the Series A Securities shall be
limited to $592,783,600. Each Series A Security shall be dated the date of its
authentication.
Section 2.3. Principal Payment Date. Subject to Section 2.4 hereof, the
principal amount of the Series A Securities Outstanding (together with any
accrued and unpaid interest (including any Additional Interest) thereon) shall
be payable in a single installment on July 26, 2029.
Section 2.4. Shortening or Extension of Stated Maturity. The Corporation
shall have the right to (a) shorten the Stated Maturity of the principal of the
Series A Securities at any time to any date not earlier than July 26, 2014, and
(b) extend the Stated Maturity of the principal of the Series A Securities at
any time at its election for one or more periods, but in no event to a date
later than July 26, 2048; provided that, any election by the Corporation to
extend the Stated Maturity of the principal of the Series A Securities pursuant
to clause (b) above and any extension pursuant to such election, in each case,
shall be effective only if (i) the Corporation is not in bankruptcy, otherwise
insolvent or in liquidation, (ii) the Corporation is not in default in the
payment of any interest or principal on the Series A Securities, (iii) EIX Trust
I 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 Series A Securities are rated not less than BBB- by S&P or Baa3 by
Moody's, or the equivalent by any successor nationally recognized statistical
rating organization. In the event the Corporation elects to shorten or extend
the Stated Maturity of the Series A Securities, it shall give notice to the
Trustee, no less than 30 and no more than 60 days prior to the effectiveness
thereof. The Trustee shall give notice of such shortening or extension to the
Holders promptly upon receipt.
Section 2.5. Interest and Interest Rates. The rate of interest on each
Series A Security shall be 7.875% per annum, accruing from July 26, 1999 and,
subject to Section 2.6 hereof, interest shall be payable, quarterly in arrears,
on August 31, November 30, February 28 and May 31 of each year (each such date,
an "Interest Payment Date"), commencing August 31, 1999. The rate of any
Additional Interest that shall accrue on each Series A Security shall be the
same rate per annum. The amount of interest payable for any period shall be
computed on the basis of a 360-day year of twelve 30-day months. For any period
of less than a full month, interest payable shall reflect interest on the Series
A Securities computed on the basis of the actual number of elapsed days based on
a month of 30 days in a 360-day year. In the event that any date on which
interest is payable on a Series A Security is not a Business Day, then a payment
of the interest payable on such date will be made on the next succeeding day
which is a
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<PAGE>
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 the date such payment was
originally payable. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Series A Security is registered in the Security Register at the
close of business on the Regular Record Date for such interest installment. The
interest so payable on any Series A Security which is not punctually paid or
duly provided for on any Interest Payment Date shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name such Series A Security is registered in the Security
Register 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 Series A Securities 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
Series A Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Subordinated Indenture.
Section 2.6. Extension of Interest Payment Period. (a) So long as no Event
of Default shall have occurred and be continuing, the Corporation shall have the
right, at any time during the term of the Series A Securities, from time to
time, to defer the payment of interest on the Series A Securities for up to 20
consecutive quarters with respect to each deferred period (each, an "Extension
Period"), during which Extension Periods the Corporation shall have the right to
make partial payments of interest on any Interest Payment Date. No Extension
Period shall (i) end on a date other than an Interest Payment Date or (ii)
extend beyond the Stated Maturity of the principal of the Series A Securities
(as shortened or extended pursuant to Section 2.4 hereof). At the end of any
such Extension Period the Corporation shall pay all interest then accrued and
unpaid on the Series A Securities (together with Additional Interest thereon, if
any, at the annual rate of 7.875%, compounded quarterly, to the extent permitted
by applicable law).
(b) During any Extension Period, the Corporation shall not (i) declare
or pay any dividends or distributions on, or redeem, purchase, acquire or
make a liquidation payment with respect to, any of its capital stock, (ii)
make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem, any debt security issued by it that ranks pari
passu with or junior in interest to the Series A Securities or (iii) make
any guarantee payments with respect to any guaranty by the Corporation that
by its terms rank pari passu with or junior in interest to the Series A
Securities; provided, however, that the Corporation may (A) declare
dividends in, or make distributions in, shares of its common stock, (B)
purchase its common stock if related to the issuance of its common stock
under any of the Corporation's benefit plans for its directors, officers or
employees, or (C) declare dividends in connection with any stockholder's
rights plan, issue its stock under such plan or repurchase any rights
distributed pursuant to such plan.
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(c) Prior to the termination of any Extension Period, the Corporation
may further extend the interest payment period. Notwithstanding any
provision of this Supplemental Indenture No. 1 or the Subordinated
Indenture to the contrary, no Extension Period (as so extended) shall
exceed 20 consecutive quarters or extend beyond the Stated Maturity of the
Series A Securities. Upon termination of any such Extension Period and upon
the payment of all accrued and unpaid interest and any Additional Interest
then due, the Corporation may elect to begin a new Extension Period,
subject to the requirements of this Section 2.6. No interest shall be due
and payable during an Extension Period, except at the end thereof.
(d) The Corporation shall give the Property Trustee, the Regular
Trustees and the Trustee notice of its election to begin any such Extension
Period at least one Business Day prior to the earlier of (i) the next
Distribution Date relating to the Preferred Securities or (ii) the date the
Regular Trustees are required to give notice of the record date or the
Distribution Date relating to the Preferred Securities to the New York
Stock Exchange or other applicable self-regulatory organization or to
holders of such Preferred Securities. The Trustee shall promptly give
notice of the Corporation's election to begin any such Extension Period to
the Holders of the Outstanding Series A Securities.
Section 2.7. Place of Payment. The Place of Payment where the Series A
Securities may be presented or surrendered for payment, where the Series A
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Corporation in respect of the Series A
Securities and the Subordinated Indenture may be served shall be the Corporate
Trust Office of the Trustee.
Section 2.8. Redemption. (a) At any time on or after July 26, 2004, the
Corporation may, at its option, subject to the terms and conditions of Article
XI of the Subordinated Indenture, redeem the Series A Securities in whole at any
time or in part from time to time, without premium or penalty, at a redemption
price equal to 100% of the principal amount thereof plus the accrued and unpaid
interest, including Additional Interest, if any, to the date fixed for
redemption; provided, however, that no partial redemption may occur during any
Extension Period; provided, further, that the Series A Securities shall be
subject to partial redemption only in the amount of $25 or integral multiples
thereof.
(b) If a Special Event in respect of EIX Trust I shall occur and be
continuing, the Corporation may, at its option, redeem the Series A
Securities within 90 days of the occurrence of such Special Event, in whole
but not in part, subject to the provisions of Article XI of the
Subordinated Indenture. The redemption price for any Series A Security so
redeemed shall be equal to 100% of the principal amount thereof plus
accrued and unpaid interest, including Additional Interest, if any, to the
date fixed for redemption.
Section 2.9. Additional Sums. During the continuance of a Tax Event, if the
Corporation has not elected to redeem the Series A Securities pursuant to
Section
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2.8 hereof or terminate EIX Trust I pursuant to Section 9.2(b) of the
Trust Agreement, the Corporation shall pay to EIX Trust I (and its permitted
successors or assigns under the Trust Agreement) for so long as EIX Trust I (or
its permitted successor or assignee) is the registered holder of the Series A
Securities, such additional amounts as may be necessary in order that the amount
of Distributions (including any Additional Amounts (as defined in the Trust
Agreement)) then due and payable by EIX Trust I on the Preferred Securities and
the Common Securities that at any time remain outstanding in accordance with the
terms thereof shall not be reduced as a result of any Additional Taxes (the
"Additional Sums"). Whenever in the Subordinated Indenture, the Series A
Securities or this Supplemental Indenture No. 1 there is a reference in any
context to the payment of principal of, premium, if any, or interest on the
Series A Securities, such mention shall be deemed to include mention of the
payments of the Additional Sums provided for in this Section 2.9 to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this Section 2.9 and express mention of
the payment of Additional Sums (if applicable) in any provisions hereof shall
not be construed as excluding Additional Sums in those provisions hereof where
such express mention is not made; provided, however, that the deferral of the
payment of interest pursuant to Section 2.6 hereof or the Series A Securities
shall not defer the payment of any Additional Sums that may be due and payable.
Section 2.10. Exchange. At any time, the Corporation may terminate EIX
Trust I and cause the Series A Securities to be distributed to Holders of the
Trust Securities in liquidation of EIX Trust I.
Section 2.11. Denomination. The Series A Securities shall be in registered
form without coupons and shall be issuable in denominations of $25 and integral
multiples thereof.
Section 2.12. Currency. Principal and interest and other amounts payable on
the Series A Securities shall be payable in United States dollars.
Section 2.13. Form of Series A Securities. The Series A Securities shall be
substantially in the form attached as Exhibit A hereto.
Section 2.14. Securities Registrar and Paying Agent; Unclaimed Amounts. The
Trustee shall initially serve as Security Registrar and Paying Agent. Any amount
paid to the Trustee or any Paying Agent, or held in trust by the Corporation,
for payments on any Series A Security, that remains unclaimed at the end of two
years after such amount is due will be repaid to the Corporation.
Section 2.15. No Sinking Fund Obligations. The Corporation has no
obligation to redeem or purchase any Series A Securities pursuant to any sinking
fund or analogous requirement or upon the happening of a specified event or at
the option of a Holder thereof.
Section 2.16. Additional Covenants. The Corporation covenants and agrees
with each Holder of Series A Securities that it shall not (a) declare or pay any
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dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of its capital stock, (b) make
any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities issued by it that rank pari passu with
or junior in interest to the Series A Securities or (c) make any guarantee
payments with respect to any guarantee by the Corporation if such guarantee
ranks pari passu with or junior in interest to the Series A Securities, if at
such time, in each case, (i) there shall have occurred any event of which the
Corporation has actual knowledge that (A) with the giving of notice or the lapse
of time or both, would constitute an Event of Default with respect to the Series
A Securities and (B) in respect of which the Corporation has not taken
reasonable steps to cure, (ii) if the Series A Securities are held by EIX Trust
I, the Corporation shall be in default with respect to its payment of any
obligations under the Guarantee relating to the Preferred Securities or (iii)
the Corporation shall have given notice of its election to begin an Extension
Period with respect to the Series A Securities as provided herein and shall not
have rescinded such notice, or such Extension Period, or any extension thereof,
shall be continuing; provided, however, that the Corporation may (1) declare
dividends in, or make distributions in, shares of its common stock, (2) purchase
its common stock if related to the issuance of its common stock under any of the
Corporation's benefit plans for its directors, officers or employees, (3)
declare dividends in connection with any stockholder's rights plan, issue its
stock under such plan or repurchase any rights distributed pursuant to such plan
or (4) make payments under the Guarantee relating to the Preferred Securities.
The Corporation also covenants with each Holder of Series A Securities
issued to EIX Trust I (i) to maintain directly or indirectly 100% ownership of
the common securities of EIX Trust I; provided, however, that any permitted
successor of the Corporation hereunder or under the Subordinated Indenture may
succeed to the Corporation's ownership of such common securities, (ii) not to
voluntarily terminate, wind-up or liquidate EIX Trust I, except (a) in
connection with a distribution of the Series A Securities to the holders of
Preferred Securities in liquidation of EIX Trust I or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the Trust
Agreement and (iii) to use its reasonable efforts, consistent with the terms and
provisions of the Trust Agreement, to cause EIX Trust I to remain classified as
a grantor trust and not an association taxable as a corporation for United
States federal income tax purposes.
Section 2.17. Consolidation, Merger, Conveyance, Transfer or Lease. In
addition to the requirements set forth in Section 801 of the Subordinated
Indenture, the Corporation shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge into
the Corporation or convey, transfer or lease its properties and assets
substantially as an entirety to the Corporation, unless (a) in case the
Corporation shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, the corporation formed by such consolidation or into which the
Corporation is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Corporation substantially as an
entirety shall expressly assume, by an indenture supplemental to the
Subordinated Indenture, executed and delivered to the Trustee, in
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form satisfactory to the Trustee, all obligations of the Corporation under (i)
the Guarantee relating to the Preferred Securities and (ii) the Expense
Agreement and (b) such consolidation, merger, conveyance, transfer or lease is
permitted under the Trust Agreement and the Guarantee relating to the Preferred
Securities and does not give rise to any breach or violation of the Trust
Agreement or the Guarantee relating to the Preferred Securities.
Section 2.18. Supplemental Indentures With Consent of Holders.
Notwithstanding anything to the contrary in Article IX of the Subordinated
Indenture, so long as any of the Preferred Securities remains outstanding, (a)
without the prior consent of the Holders of a majority aggregate Liquidation
Amount of the Preferred Securities then outstanding unless and until the
principal (and premium, if any) of the Series A Securities and all accrued and,
subject to Section 307 of the Subordinated Indenture, unpaid interest (including
any Additional Interest) thereon have been paid in full (i) no supplemental
indenture shall be made that adversely affects the Holders of the Preferred
Securities in any material respect, (ii) no termination of the Subordinated
Indenture shall occur, and (iii) no waiver of any Event of Default or compliance
with any covenant under the Subordinated Indenture shall be effective, and (b)
no amendment shall be made to Article 3 of this Supplemental Indenture No. 1
that would impair the rights of the Holders of Preferred Securities provided
therein without the prior consent of the Holders of each Preferred Security then
outstanding unless and until the principal (and premium, if any) of the Series A
Securities and all accrued and, subject to Section 307 of the Subordinated
Indenture, unpaid interest (including any Additional Interest) thereon have been
paid in full.
Section 2.19. Certain Rights of Holders of Preferred Securities.
Notwithstanding anything to the contrary in the Subordinated Indenture, in the
case of the Series A Securities, so long as any of the Preferred Securities
remains outstanding:
(a) if upon an Event of Default, the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Series A Securities
fail to declare the principal of all the Series A 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 Corporation and the Trustee; and
upon any such declaration such principal amount (or specified portion
thereof) of and the accrued interest (including any Additional Interest) on
all the Series A Securities shall become immediately due and payable;
provided, however, that the payment of principal and interest (including
any Additional Interest) on the Series A Securities shall remain
subordinated to the extent provided in this Supplemental Indenture No. 1
notwithstanding that such amount shall become immediately due and payable
as herein provided;
(b) the Holders of not less than a majority in aggregate Liquidation
Amount of the Preferred Securities then outstanding shall also have the
right to rescind and annul any declaration of acceleration with respect to
the Series A Securities and its consequences by written notice to the
Corporation and
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the Trustee, subject to the satisfaction of the conditions set forth in
Clauses (1) and (2) of Section 502 of the Subordinated Indenture;
(c) any Holder of the Preferred Securities shall have the right, upon
the occurrence of an Event of Default described in Section 501(1) or 501(2)
of the Subordinated Indenture, to institute a suit directly against the
Corporation for enforcement of payment to such Holder of principal of
(premium, if any) and, subject to Section 307 of the Subordinated
Indenture, interest (including any Additional Interest) on the Series A
Securities having a principal amount equal to the aggregate Liquidation
Amount of such Preferred Securities held by such Holder;
(d) the Holders of the Preferred Securities shall have the rights
afforded to the Holders of the Series A Securities pursuant to Sections
509, 510 and 511 of the Subordinated Indenture; and
(e) the Holders of not less than a majority in aggregate Liquidation
Amount of Preferred Securities may waive any past default under the
Subordinated Indenture and its consequences with respect to the Series A
Securities, except as specified in clauses (1) and (2) of Section 513 of
the Subordinated Indenture with respect to the Holders of not less than a
majority in principal amount of the Outstanding Series A Securities; any
such waiver shall be deemed to be on behalf of all Holders of Preferred
Securities.
Section 2.20. Agreed Tax Treatment. Each Series A Security shall provide
that the Corporation and, by its acceptance of a Series A Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Series A Security agree that for United States
federal, state and local tax purposes it is intended that such Series A Security
constitute indebtedness.
ARTICLE 3
SUBORDINATION OF SERIES A SECURITIES
Section 3.1. Subordination. Notwithstanding anything to the contrary in the
Subordinated Indenture, the Corporation covenants and agrees, and each Holder of
a Series A Security, by its acceptance thereof likewise covenants and agrees,
that to the extent and in the manner hereinafter set forth in this Article 3,
the indebtedness represented by the Series A Securities and the payment of the
principal of and any premium and interest (including Additional Interest) on
each and all of the Series A Securities are subordinate in right of payment to
the prior payment in full of all Senior Indebtedness.
Section 3.2. Payment Over of Proceeds Upon Dissolution, Etc. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, dissolution, winding up, arrangement, adjustment, composition or
other judicial
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proceeding relative to the Corporation (each such event, if any, herein
sometimes referred to as a "Proceeding"), then the holders of Senior
Indebtedness of the Corporation shall be entitled to receive payment in full of
all Allocable Amounts of such Senior Indebtedness, or provision shall be made
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness of the Corporation before the
Holders of the Series A Securities are entitled to receive or retain any payment
or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other Indebtedness of the
Corporation (including any Series A Securities), subordinated to the payment of
the Series A Securities, such payment or distribution being hereinafter referred
to as a "Subordinated Payment"), on account of principal of (or premium, if any)
or interest (including any Additional Interest) on the Series A Securities or on
account of the purchase or other acquisition of Series A Securities by the
Corporation and to that end the holders of Senior Indebtedness of the
Corporation shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, including any Subordinated Payment, which may be payable
or deliverable in respect of the Series A Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this Section
3.2, the Trustee or the Holder of any Series A Security shall have received any
payment or distribution of assets of the Corporation of any kind or character,
whether in cash, property or securities, including any Subordinated Payment,
before all Allocable Amounts of all Senior Indebtedness of the Corporation are
paid in full or payment thereof is provided for in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness of the
Corporation, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Corporation for application to the payment of all
Allocable Amounts of all Senior Indebtedness of the Corporation remaining
unpaid, to the extent necessary to pay all Allocable Amounts of all Senior
Indebtedness of the Corporation in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness of the
Corporation.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in 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 corporation provided
for by a plan of reorganization or readjustment which securities are
subordinated in right of payment to all then outstanding Senior Indebtedness of
the Corporation to substantially the same extent as the Series A Securities are
so subordinated as provided in this Article. 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 sale of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Section 2.17 hereof and the
Subordinated Indenture shall not be deemed a
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Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Corporation is merged or the Person which
acquires by sale such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Section 2.17 hereof and the Subordinated Indenture.
Section 3.3. Prior Payment to Senior Indebtedness Upon Acceleration of
Series A Securities. In the event that any Series A Securities are declared due
and payable before their Stated Maturity, then and in such event the holders of
the Senior Indebtedness of the Corporation outstanding at the time such Series A
Securities so become due and payable shall be entitled to receive payment in
full of all Allocable Amounts due on or in respect of such Senior Indebtedness
(including any amounts due upon acceleration), or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness of the Corporation, before the Holders of
the Series A Securities are entitled to receive any payment or distribution of
any kind or character, whether in cash, properties or securities (including any
Subordinated Payment) by the Corporation on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on the Series A
Securities or on account of the purchase or other acquisition of Series A
Securities by the Corporation.
In the event that, notwithstanding the foregoing, the Corporation shall
make any payment to the Trustee or the Holder of any Series A Security
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee or,
as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Corporation.
The provisions of this Section shall not apply to any payment with respect
to which Section 3.2 would be applicable.
Section 3.4. No Payment When Senior Indebtedness in Default. (a) In the
event and during the continuation of any default in the payment of principal of
(or premium, if any) or interest on any Senior Indebtedness of the Corporation
or in the event that any event of default with respect to any Senior
Indebtedness of the Corporation shall have occurred and be continuing and shall
have resulted in such Senior Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and such acceleration shall have been rescinded or
annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or such event or default, then no payment
or distribution of any kind or character, whether in cash, properties or
securities (including any Subordinated Payment), shall be made by the
Corporation on account of principal of (or premium, if any) or interest
(including any Additional Interest), if any, on the Series A Securities or on
account of the purchase or other acquisition of the Series A Securities by the
Corporation, in each case unless and until all Allocable Amounts of such Senior
Indebtedness are paid in full.
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In the event that, notwithstanding the foregoing, the Corporation shall
make any payment to the Trustee or the Holder of any Series A Security
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known to the Trustee or,
as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Corporation.
The provisions of this Section shall not apply to any payment with respect
to which Section 3.2 would be applicable.
Section 3.5. Payment Permitted If No Default. Nothing contained in this
Article or elsewhere in this Supplemental Indenture No. 1, the Subordinated
Indenture or in any Series A Security shall prevent (a) the Corporation at any
time except during the pendency of any Proceeding with respect to it referred to
in Section 3.2 or under the conditions described in Sections 3.3 and 3.4, from
making payments at any time of principal of (and premium, if any) or interest
(including Additional Interest) on the Series A Securities, or (b) the
application by the Trustee of any money deposited with it under this
Supplemental Indenture No. 1 or the Subordinated Indenture to the payment of or
on account of the principal of (and premium, if any) or interest (including any
Additional Interest) on the Series A Securities or the retention of such payment
by the Holders, if, at the time of such application by the Trustee, it did not
have knowledge that such payment would have been prohibited by the provisions of
this Article.
Section 3.6. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on all Senior
Indebtedness of the Corporation or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness of the Corporation, the Holders of the Series A Securities shall be
subrogated to the extent of the payments or distributions made to the holders of
such Senior Indebtedness pursuant to the provisions of this Article (equally and
ratably with the holders of all indebtedness of the Corporation which by its
express terms is subordinated to Senior Indebtedness of the Corporation to
substantially the same extent as the Series A Securities are subordinated to the
Senior Indebtedness of the Corporation and is entitled to like rights of
subrogation by reason of any payments or distributions made to holders of such
Senior Indebtedness) to the rights of the holders of such Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Senior Indebtedness of the Corporation until the principal of (and
premium, if any) and interest on the Series A Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of the Corporation of any cash, property or securities
to which the Holders of the Series A Securities or the Trustee would be entitled
except for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Indebtedness of the
Corporation by Holders of the Series A Securities or the Trustee, shall, as
among the Corporation, its creditors other than holders of its Senior
Indebtedness, and the Holders of the Series A Securities, be deemed to be a
payment or distribution by the Corporation to or on account of its Senior
Indebtedness.
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Section 3.7. Provisions Solely to Define Relative Rights. The provisions of
this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Series A Securities on the one hand and
the holders of Senior Indebtedness of the Corporation on the other hand. Nothing
contained in this Article or elsewhere in this Supplemental Indenture No. 1, the
Subordinated Indenture or in the Series A Securities is intended to or shall (a)
impair, as between the Corporation and the Holders of the Series A Securities,
the obligation of the Corporation, which is absolute and unconditional, to pay
to the Holders of the Series A Securities the principal of (and premium, if any)
and interest (including any Additional Interest) on the Series A Securities as
and when the same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Corporation of the Holders of the
Series A Securities and creditors of the Corporation other than their rights in
relation to the holders of Senior Indebtedness; or (c) prevent the Trustee or
the Holder of any Series A Security from exercising all remedies otherwise
permitted by applicable law upon default under the Subordinated Indenture
including, without limitation, filing and voting claims in any Proceeding with
respect to the Corporation, subject to the rights, if any, under this Article of
the holders of Senior Indebtedness with respect to the Corporation to receive
cash, property and securities otherwise payable or deliverable to the Trustee or
such Holder.
Section 3.8. Trustee to Effectuate Subordination. Each Holder of a Series A
Security by his or her acceptance thereof authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
Section 3.9. No Waiver of Subordination Provisions. No right of any present
or future holder of any Senior Indebtedness with respect to the Corporation to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Corporation or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Corporation with the terms, provisions and
covenants of this Supplemental Indenture No. 1, regardless of any knowledge
thereof that any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness with respect to the Corporation
may, at any time and from to time, without the consent of or notice to the
Trustee or the Holders of the Series A Securities, without incurring
responsibility to the Holders of the Series A Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Series A Securities to the holders of such
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness with respect to the Corporation or otherwise amend or
supplement in any manner Senior Indebtedness with respect to the Corporation or
any instrument evidencing the same or any agreement under which Senior
Indebtedness with respect to the Corporation is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness with respect to
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the Corporation; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness with respect to the Corporation; and (iv)
exercise or refrain from exercising any rights against the Corporation and any
other Person.
Section 3.10. Notice to Trustee. The Corporation shall each give prompt
written notice to the Trustee of any fact known to it which would prohibit the
making of any payment to or by the Trustee in respect of the Series A
Securities. Notwithstanding the provisions of this Article or any other
provision of this Supplemental Indenture No. 1 or the Subordinated Indenture,
the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment to or by the Trustee in respect
of the Series A Securities, unless and until the Trustee shall have received
written notice thereof from the Corporation or a holder of Senior Indebtedness
thereof or from any trustee, agent or representative therefor; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section at least two Business Days prior to the date upon which by the
terms hereof or under the Subordinated Indenture any monies may become payable
for any purpose (including, without limitation, the payment of the principal of
(and premium, if any) or interest (including any Additional Interest) on any
Series A Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
monies and to apply the same to the purpose for which they were received and
shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date.
Subject to the provisions of Section 601 of the Subordinated Indenture, 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 of the
Corporation (or a trustee therefor) to establish that such notice has been given
by a holder of Senior Indebtedness of the Corporation (or a trustee therefor).
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 of the Corporation 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 of the Corporation 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 any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 3.11. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Corporation referred to
in this Article, the Trustee, subject to the provisions of Section 601 of the
Subordinated Indenture, and the Holders of the Series A Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution,
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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.
Section 3.12. Trustee Not Fiduciary for Holders of Senior Indebtedness. The
Trustee, in its capacity as trustee under the Subordinated Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the
Corporation and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of the Series A Securities or
to the Corporation or to any other Person cash, property or securities to which
any holders of Senior Indebtedness of the Corporation shall be entitled by
virtue of this Article or otherwise.
Section 3.13. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness of the Corporation which may at any time be held by it, to
the same extent as any other holder of such Senior Indebtedness, and nothing in
this Supplemental Indenture No. 1 or the Subordinated Indenture shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article shall
be construed to apply to claims of the Trustee or any predecessor Trustee under
Section 506 or 607 of the Subordinated Indenture.
Section 3.14. Article Applicable to Paying Agents. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Corporation
and be then acting under this Supplemental Indenture No. 1 or the Subordinated
Indenture, the term "Trustee" as used in this Article shall in such case (unless
the context otherwise requires) 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.
Section 3.15. Certain Conversions or Exchanges Deemed Payment. For the
purposes of this Article only, (a) the issuance and delivery of junior
securities upon conversion or exchange of Series A Securities shall not be
deemed to constitute a payment or distribution on account of the principal of
(or premium, if any) or interest (including any Additional Interest) on Series A
Securities or on account of the purchase or other acquisition of Series A
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than junior securities) upon conversion or exchange of a
Series A Security shall be deemed to constitute payment on account of the
principal of such Series A Security. For the purposes of this Section, the term
"junior securities" means (i) shares of any stock of any class of the
Corporation and (ii) securities of the Corporation which are subordinated in
right of payment to all Senior Indebtedness thereof which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Series A Securities are so
subordinated as provided in this Article.
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ARTICLE 4
MISCELLANEOUS PROVISIONS
Section 4.1. The Subordinated Indenture, as supplemented and amended by
this Supplemental Indenture No. 1, is in all respects hereby adopted, ratified
and confirmed.
Section 4.2. This Supplemental Indenture No. 1 may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 4.3. Nothing in this Supplemental Indenture No. 1, express or
implied, shall give to any Person, other than the parties hereto and their
successors and assigns, the holders of Senior Indebtedness of the Corporation,
the Holders of the Series A Securities and, to the extent expressly provided
herein, the Holders of the Preferred Securities, any benefit or legal or
equitable right, remedy or claim under this Supplemental Indenture No. 1 or the
Subordinated Indenture.
Section 4.4. THIS SUPPLEMENTAL INDENTURE NO. 1 AND EACH SERIES A SECURITY
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF, EXCEPT THAT
THE RIGHTS, DUTIES, INDEMNITIES AND IMMUNITIES OF THE TRUSTEE SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 1 to be duly executed, as of the day and year first
written above.
EDISON INTERNATIONAL
By:
------------------------------
Name: Mary C. Simpson
Title: Assistant Treasurer
Attest:
---------------------
THE CHASE MANHATTAN BANK,
as Trustee
By:
-------------------------------
Authorized Signatory
Attest:
--------------------
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EXHIBIT A
[FORM OF FACE OF SERIES A SECURITY]
[IF THE SERIES A SECURITY IS TO BE A GLOBAL SECURITY - This
Series A Security is a Global Security within the meaning of the Subordinated
Indenture hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Series A Security is exchangeable for Series A Securities registered in the name
of a person other than the Depository or its nominee only in the limited
circumstances described in the Subordinated Indenture and may not be transferred
except as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository.]
EDISON INTERNATIONAL
7.875% Subordinated Deferrable Interest Notes,
Series A
No. ___________ $
CUSIP No.____
EDISON INTERNATIONAL, a corporation organized and existing
under the laws of the State of California (hereinafter called the "Corporation,"
which term includes any successor Person under the Subordinated Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of ___________ Dollars
on July 26, 2029. The Corporation further promises to pay interest on said
principal sum from July 26, 1999 or from the most recent Interest Payment Date
on which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on August 31, November 30, February 28
and May 31 of each year (each such date, an "Interest Payment Date"), commencing
August 31, 1999, at the rate of 7.875% per annum, until the principal hereof
shall have become due and payable, plus Additional Interest, if any, until the
principal hereof is paid or duly provided for or made available for payment and
on any overdue principal and (without duplication and to the extent that payment
of such interest is enforceable under applicable law) on any overdue installment
of interest at the rate of 7.875% per annum, compounded quarterly. The amount of
interest payable for any period will be computed on the basis of twelve 30-day
months and a 360-day year. The amount of interest payable for any partial period
shall be computed on the basis of the actual number of elapsed days based on a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Series A Security is not a Business Day, then a
payment of the 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 the date the payment was originally payable. A "Business Day" shall mean any
day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in the City of New York or Los Angeles, California, are authorized
or obligated by law or executive order to remain closed or (iii) a day on which
the Corporate Trust Office of the Trustee is closed for business. The interest
installment so payable,
A-1
<PAGE>
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Subordinated Indenture, be paid to the Person in whose name this
Series A Security (or one or more Predecessor Securities is registered at the
close of business on the Regular Record Date for such interest installment. Any
such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Series A 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 Series A Securities 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 Series A Securities may be listed or traded, and upon such
notice as may be required by such exchange, all as more fully provided in said
Subordinated Indenture.
So long as no Event of Default shall have occurred and be continuing, the
Corporation shall have the right, at any time during the term of the Series A
Securities, from time to time, to defer the payment of interest on the Series A
Securities for up to 20 consecutive quarters with respect to each deferred
period (each, an "Extension Period"), during which Extension Periods the
Corporation shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall (i) end on a date other than an
Interest Payment Date or (ii) extend beyond the Stated Maturity of the principal
of the Series A Securities (as shortened or extended pursuant to the
Subordinated Indenture). At the end of any such Extension Period the Corporation
shall pay all interest then accrued and unpaid on the Series A Securities
(together with Additional Interest thereon, if any, at the annual rate of 7.875%
compounded quarterly, to the extent permitted by applicable law). During any
Extension Period, the Corporation shall not (a) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock, (b) make any payment of principal of
or interest or premium, if any, on or repay, repurchase or redeem, any debt
security issued by it that ranks pari passu with or junior in interest to the
Series A Securities or (c) make any guarantee payments with respect to any
guaranty by the Corporation that by its terms rank pari passu with or junior in
interest to the Series A Securities; provided, however, that the Corporation may
(1) declare dividends in, or make distributions in, shares of its common stock,
(2) purchase its common stock if related to the issuance of its common stock
under any of the Corporation's benefit plans for its directors, officers or
employees, or (3) declare dividends in connection with any stockholder's rights
plan, issue its stock under such plan or repurchase any rights distributed
pursuant to such plan. Prior to the termination of any Extension Period, the
Corporation may further extend the interest payment period. Notwithstanding any
provision of the Subordinated Indenture to the contrary, no Extension Period (as
so extended) shall exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Series A Securities. Upon termination of any such Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Corporation may elect to begin a new Extension
Period, subject to the requirements of the Subordinated Indenture. No interest
shall be due and payable during an Extension Period, except at the end thereof.
The Corporation shall give the Property Trustee, the Regular Trustees and the
Trustee notice of its election to begin any such Extension Period at least one
Business Day prior to the earlier of (y) the next Distribution Date relating to
the Preferred Securities or (z) the date the Regular Trustees are required to
give notice of the record date or the Distribution Date relating to the
Preferred Securities to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities. The
Trustee shall promptly
A-2
<PAGE>
give notice of the Corporation's election to begin any such Extension Period to
the Holders of the Outstanding Series A Securities.
Payment of the principal of (and premium, if any) and any such interest on
this Series A Security will be made at the office or agency of the Corporation
maintained for that purpose in the City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Corporation payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or by wire transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Trustee
at least sixteen (16) days prior to the date for payment by the Person entitled
thereto.
Reference is hereby made to the further provisions of this Series A
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 Series A
Security shall not be entitled to any benefit under the Subordinated Indenture
or be valid or obligatory for any purpose.
A-3
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this instrument
to be duly executed under its corporate seal.
Dated at Date of Authentication: EDISON INTERNATIONAL
By:
------------------------------------
Name:
Title:
Attest:
- --------------------------------------
This is one of the Series A Securities referred to in the within mentioned
Subordinated Indenture.
Dated:
------------- THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------------------------
Authorized Signatory
A-4
<PAGE>
[FORM OF REVERSE OF SERIES A SECURITY]
This Series A Security is one of a duly authorized issue of securities of
the Corporation, issued and to be issued in one or more series under the
Subordinated Indenture, dated as of July 26, 1999, as amended (herein called the
"Subordinated Indenture"), among the Corporation and The Chase Manhattan Bank,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Subordinated Indenture), to which Subordinated Indenture
(including all indentures supplemental thereto) reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Corporation and the Holders of the Series A
Securities, and of the terms upon which the Series A Securities are, and are to
be, authenticated and delivered. This Series A Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$592,783,600.
All terms used in this Series A Security that are defined in the
Subordinated Indenture or in the Amended and Restated Trust Agreement, dated as
of July 26, 1999 (the "Trust Agreement"), for EIX Trust I among the Corporation,
as Depositor, and the Property Trustee and the other trustees named therein,
shall have the meanings assigned to them in the Subordinated Indenture or the
Trust Agreement, as the case may be.
The Corporation may at any time, at its option, on or after July 26, 2004,
and subject to the terms and conditions of Article XI of the Subordinated
Indenture, redeem this Series A Security in whole at any time or in part from
time to time, without premium or penalty, at a redemption price equal to 100% of
the principal amount hereof plus accrued and unpaid interest, including
Additional Interest, if any, to the Redemption Date.
Upon the occurrence and continuance of a Special Event in respect of EIX
Trust I, the Corporation may, at its option, at any time within 90 days of the
occurrence of such Special Event, redeem this Series A Security, in whole but
not in part, subject to the provisions of the Subordinated Indenture, at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest, including Additional Interest, if any, to the Redemption Date.
The Subordinated Indenture contains provisions for satisfaction, discharge
and defeasance at any time of the entire indebtedness of this Series A Security
upon compliance by the Corporation with certain conditions set forth in the
Subordinated Indenture.
If an Event of Default with respect to the Series A Securities shall occur
and be continuing, the principal of the Series A Securities may be declared due
and payable in the manner and with the effect provided in the Subordinated
Indenture.
The indebtedness evidenced by this Series A Security is, to the extent
provided in the Subordinated Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the
Corporation, and this Series A Security is issued subject to the provisions of
the Subordinated Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Subordinated Indenture
A-5
<PAGE>
by each holder of Senior Indebtedness of the Corporation, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
The Subordinated Indenture permits, with certain exceptions as therein
provided, the Corporation and the Trustee at any time to enter into a
supplemental indenture or indentures for the purpose of modifying in any manner
the rights and obligations of the Corporation and of the Holders of the Series A
Securities, with the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series to be affected by such supplemental
indenture. The Subordinated Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Corporation with certain provisions of
the Subordinated Indenture and certain past defaults under the Subordinated
Indenture and their consequences. Any such consent or waiver by the Holder of
this Series A Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Series A Security and of any Series A Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Series A Security.
As provided in and subject to the provisions of the Subordinated Indenture,
if an Event of Default with respect to Series A Securities at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding Series A
Securities may declare the principal amount of all the Series A Securities to be
due and payable immediately, by a notice in writing to the Corporation (and to
the Trustee if given by Holders), provided that, if upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Series A Securities fail to declare the principal of all the Series
A 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 Corporation and the Trustee; and
upon any such declaration the principal amount of and the accrued interest
(including any Additional Interest) on all the Series A Securities shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Series A Securities shall remain
subordinated to the extent provided in the Subordinated Indenture.
No reference herein to the Subordinated Indenture and no provision of this
Series A Security or of the Subordinated Indenture shall alter or impair the
obligation of the Corporation, which is absolute and unconditional, to pay the
principal and interest on this Series A Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein set forth, the transfer of this Series A Security is
registrable in the Securities Register, upon surrender of this Series A 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 Series A
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 Series A Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
A-6
<PAGE>
The Series A Securities are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Subordinated Indenture and subject to certain limitations therein set
forth, the Series A Securities are exchangeable for a like aggregate principal
amount of Series A Securities 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 Series 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 this Series A Security is registered
as the owner hereof for all purposes, whether or not this Series A Security be
overdue, and neither the Corporation, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Corporation and, by its acceptance of this Series A Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Series A Security agree that for United States
federal, state and local tax purposes it is intended that this Series A Security
constitute indebtedness.
The Series A Securities shall be governed by and construed in accordance
with the laws of the State of California, except that the rights, duties,
indemnities and immunities of the Trustee shall be governed by the laws of the
State of New York.
A-7
AMENDED AND RESTATED
TRUST AGREEMENT
among
EDISON INTERNATIONAL
as Depositor,
THE CHASE MANHATTAN BANK,
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
THE REGULAR TRUSTEES NAMED HEREIN,
and
THE SEVERAL HOLDERS, AS DEFINED HEREIN
Dated as of July 26, 1999
EIX TRUST I
<PAGE>
TABLE OF CONTENTS
(continued)
EIX TRUST I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act Trust Agreement
Section Section
- ------------------ ---------------
(S) 310 (a)(1) ................................... 8.7
(a)(2) ................................... 8.7
(a)(3) ................................... 8.9
(a)(4) ................................... 2.7(a)(ii)
(b) ................................... 8.8
(S) 311 (a) ................................... 8.13
(b) ................................... 8.13
(S) 312 (a) ................................... 5.7
(b) ................................... 5.7
(c) ................................... 5.7
(S) 313 (a) ................................... 8.14(a)
(a)(4) ................................... 8.14(b)
(b) ................................... 8.14(b)
(c) ................................... 10.8
(d) ................................... 8.14(c)
(S) 314 (a) ................................... 8.15
(b) ................................... Not Applicable
(c)(1) ................................... 8.16
(c)(2) ................................... 8.16
(c)(3) ................................... Not Applicable
(d) ................................... Not Applicable
(e) ................................... 1.1, 8.16
(S) 315 (a) ................................... 8.1(a), 8.3(a)
(b) ................................... 8.2, 10.8
(c) ................................... 8.1(a)
(d) ................................... 8.1, 8.3
(e) ................................... Not Applicable
(S) 316 (a) ................................... Not Applicable
(a)(1)(A) ................................... Not Applicable
(a)(1)(B) ................................... Not Applicable
(a)(2) ................................... Not Applicable
(b) ................................... 5.14
(c) ................................... 6.7
(S) 317 (a)(1) ................................... Not Applicable
(a)(2) ................................... Not Applicable
(b) ................................... 5.9
(S) 318 (a) ................................... 10.10
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
(continued)
TABLE OF CONTENTS
Article I DEFINED TERMS......................................................1
SECTION 1.1. Definitions....................................................1
Article II ESTABLISHMENT OF THE TRUST........................................10
SECTION 2.1. Name...........................................................10
SECTION 2.2. Office of the Delaware Trustee; Principal Place
of Business......................10
SECTION 2.3. Organizational Expenses........................................10
SECTION 2.4. Issuance of the Preferred Securities...........................11
SECTION 2.5. Issuance of the Common Securities; Subscription and
Purchase of Notes............11
SECTION 2.6. Declaration of Trust...........................................12
SECTION 2.7. Authorization to Enter into Certain Transactions...............12
SECTION 2.8. Assets of Trust................................................16
SECTION 2.9. Title to Trust Property........................................16
Article III PAYMENT ACCOUNT..................................................16
SECTION 3.1. Payment Account................................................16
Article IV DISTRIBUTIONS; REDEMPTION.........................................16
SECTION 4.1. Distributions..................................................16
SECTION 4.2. Redemption.....................................................17
SECTION 4.3. Subordination of Common Securities.............................20
SECTION 4.4. Payment Procedures.............................................20
SECTION 4.5. Tax Returns and Reports........................................21
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust....................21
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.........21
Article V TRUST SECURITIES CERTIFICATES......................................21
SECTION 5.1. Initial Ownership..............................................21
SECTION 5.2. Trust Securities Certificates..................................21
SECTION 5.3. Execution and Delivery of Trust Securities Certificates........22
<PAGE>
SECTION 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates..............................22
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates........................................23
SECTION 5.6. Persons Deemed Securityholders.................................23
SECTION 5.7. Access to List of Securityholders'Names and Addresses..........23
SECTION 5.8. Maintenance of Office or Agency................................24
SECTION 5.9. Appointment of Paying Agent....................................24
SECTION 5.10. Ownership of Common Securities by Depositor....................25
SECTION 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate......25
SECTION 5.12. Notices to Clearing Agency.....................................26
SECTION 5.13. Definitive Preferred Securities Certificates...................26
SECTION 5.14. Rights of Securityholders......................................27
Article VI ACTS OF SECURITYHOLDERS; MEETINGS; VOTING.........................29
SECTION 6.1. Limitations on Voting Rights...................................29
SECTION 6.2. Notice of Meetings.............................................30
SECTION 6.3. Meetings of Preferred Securityholders..........................30
SECTION 6.4. Voting Rights..................................................30
SECTION 6.5. Proxies, etc...................................................31
SECTION 6.6. Securityholder Action by Written Consent.......................31
SECTION 6.7. Record Date for Voting and Other Purposes......................31
SECTION 6.8. Acts of Securityholders........................................31
SECTION 6.9. Inspection of Records..........................................32
Article VII REPRESENTATIONS AND WARRANTIES...................................33
SECTION 7.1. Representations and Warranties of the Property
Trustee and the Delaware Trustee..33
SECTION 7.2. Representations and Warranties of Depositor....................33
<PAGE>
Article VIII THE TRUSTEES....................................................34
SECTION 8.1. Certain Duties and Responsibilities............................34
SECTION 8.2. Certain Notices................................................35
SECTION 8.3. Certain Rights of Property Trustee.............................36
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities.........38
SECTION 8.5. May Hold Securities............................................38
SECTION 8.6. Compensation; Indemnity; Fees..................................38
SECTION 8.7. Corporate Property Trustee Required; Eligibility
of Trustees....................................................39
SECTION 8.8. Conflicting Interests..........................................40
SECTION 8.9. Co-Trustees and Separate Trustee...............................40
SECTION 8.10. Resignation and Removal; Appointment of Successor..............41
SECTION 8.11. Acceptance of Appointment by Successor.........................43
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business.........................................43
SECTION 8.13. Preferential Collection of Claims A
gainst Depositor or Trust......................................43
SECTION 8.14. Reports by Property Trustee....................................44
SECTION 8.15. Reports to the Property Trustee................................45
SECTION 8.16. Evidence of Compliance with Conditions Precedent...............45
SECTION 8.17. Number of Trustees.............................................45
SECTION 8.18. Delegation of Power............................................46
SECTION 8.19. Delaware Trustee...............................................46
Article IX TERMINATION, LIQUIDATION AND MERGER...............................46
SECTION 9.1. Termination Upon Expiration Date...............................46
SECTION 9.2. Early Termination..............................................46
SECTION 9.3. Termination....................................................47
SECTION 9.4. Liquidation....................................................47
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust......................................49
<PAGE>
Article X MISCELLANEOUS PROVISIONS...........................................50
SECTION 10.1. Limitation of Rights of Securityholders........................50
SECTION 10.2. Amendment......................................................50
SECTION 10.3. Separability...................................................51
SECTION 10.4. Governing Law..................................................51
SECTION 10.5. Payments Due on Non-Business Day...............................51
SECTION 10.6. Successors.....................................................52
SECTION 10.7. Headings.......................................................52
SECTION 10.8. Reports, Notices and Demands...................................52
SECTION 10.9. Agreement Not to Petition......................................53
SECTION 10.10.Trust Indenture Act; Conflict with Trust Indenture Act.........53
SECTION 10.11.Acceptance of Terms of Trust Agreement, G
uarantee and Indenture.........................................53
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of July 26, 1999, among (i)
EDISON INTERNATIONAL, a California corporation (including any successors or
assigns, the "Depositor"), (ii) THE CHASE MANHATTAN BANK, a New York banking
corporation, as property trustee (in such capacity, the "Property Trustee" and,
in its separate corporate capacity and not in its capacity as Property Trustee,
the "Bank"), (iii) CHASE MANHATTAN BANK DELAWARE, a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee"), (iv) Theodore F.
Craver, Jr., James R. Berg and Mary C. Simpson, each an officer of the
Depositor, as regular trustees (the "Regular Trustees") (the Property Trustee,
the Delaware Trustee and the Regular Trustees referred to collectively as the
"Trustees") and (v) the several Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Trust Agreement,
dated as of June 30, 1999 (the "Original Trust Agreement"), and by the execution
and filing with the Secretary of State of the State of Delaware of the
Certificate of Trust, filed on June 30, 1999, attached as Exhibit A; and
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Notes and (iv)
the appointment of the Regular Trustees;
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
Article I
DEFINED TERMS
SECTION 1.1.......Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
1
<PAGE>
(c) 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 Trust
Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Supplemental Indenture) paid by the Depositor on a Like Amount of
Notes for such period.
"Additional Sums" has the meaning specified in Section 2.9 of the
Supplemental 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 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" has the meaning specified in the preamble to this Trust Agreement.
"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
2
<PAGE>
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 10.9.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or such committee of the Board of Directors or
officers of the Depositor 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
5.11.
"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 or Los Angeles, California
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 Indenture Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust, the
Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. 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 a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means the "First Time of Delivery" as specified in the
Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"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.
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"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 Trust Agreement, 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 Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located at 450 West 33rd
Street, 15th Floor, New York, New York 10001, and (ii) when used with respect to
the Indenture Trustee, the principal office of the Indenture Trustee located at
450 West 33rd Street, 15th Floor, New York, New York 10001.
"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 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C.
ss.ss.3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
the preamble to this Trust Agreement 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.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"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
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(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; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (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 Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Guarantor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Guarantor and The Chase Manhattan Bank, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the holders
of the Preferred Securities, as amended from time to time.
"Guarantor" means Edison International, a California corporation, and its
successors and assigns.
"Indenture" means the Subordinated Indenture, dated as of July 26, 1999,
between the Depositor and the Indenture Trustee, as trustee, as amended or
supplemented from time to time (including by the Supplemental Indenture).
"Indenture Event of Default" means an "Event of Default," as defined in the
Indenture, with respect to the Notes.
"Indenture Redemption Date" means, with respect to any Notes to be redeemed
under the Indenture, the date fixed for redemption under the Indenture.
"Indenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, and any successor thereto.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or
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preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Notes to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Notes to Holders of Trust
Securities in connection with a dissolution or liquidation of the Trust, Notes
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Notes are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Notes are to be distributed to
Holders of Trust Securities in connection with a dissolution and liquidation of
the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Notes" means the aggregate principal amount of the Depositor's 7.875%
Subordinated Deferrable Interest Notes, Series A, issued pursuant to the
Indenture.
"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 Depositor, and delivered to the
appropriate Trustee. The officer signing an Officer's Certificate given pursuant
to Section 8.15 shall be the principal executive, financial or accounting
officer of the Depositor. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this Trust 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.
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"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor, and who shall be
reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust 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 Trust Securities; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust 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 5.4, 5.5, 5.11 and 5.13; 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 Depositor, any
Trustee or any Affiliate of the Depositor 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 Depositor, 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 Depositor or any
Affiliate of the Depositor.
"Over-allotment Option" has the meaning specified in the Underwriting
Agreement.
"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).
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"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 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 Notes will be held and from which the Property Trustee, through the Paying
Agent, shall make payments to the Securityholders in accordance with Sections
4.1 and 4.2.
"Person" means any individual, corporation, partnership (general or
limited), joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
"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 Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit E.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement 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 Trust Agreement;
provided that each Indenture Redemption Date and the stated maturity of the
Notes shall be a Redemption Date for a Like Amount of Trust 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 Trust Securities.
"Regular Trustees" means each of the Persons identified as a "Regular
Trustee" in the preamble to this Trustee Agreement 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.
"Second Closing Date" means the "Second Time of Delivery" as specified in
the Underwriting Agreement.
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"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust Security
or Trust Securities is registered in the Securities Register, any such Person
being a beneficial owner within the meaning of the Delaware 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
Trust Agreement, 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.
"Supplemental Indenture" means the Supplemental Indenture, dated as of July
26, 1999, between the Depositor and the Indenture Trustee, as amended or
supplemented from time to time.
"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 Trust Agreement, 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 Notes, (ii) interest payable
by the Depositor on the Notes is not, or within 90 days after the date of such
Opinion of Counsel, will not be, deductible by the Depositor, 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" means the Delaware business trust created and continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto and (ii) for all purposes
of this Trust Agreement 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 Trust Agreement and any such modification, amendment or supplement,
respectively.
"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,
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to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.
"Trust Property" means (a) the Notes, (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 Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Regular Trustees.
"Underwriting Agreement" means the Pricing Agreement (including the
Underwriting Agreement incorporated by reference therein), dated July 21, 1999,
among the Trust, the Depositor and the underwriters named therein.
Article II
ESTABLISHMENT OF THE TRUST
SECTION 2.1.......Name.
The Trust continued hereby shall be known as "EIX Trust I," as such name
may be modified from time to time by the Regular Trustees following written
notice to the Holders of Trust Securities and the other Trustees, in which name
the Trustees may conduct the business of the Trust, make and execute contracts
and other instruments on behalf of the Trust and sue and be sued.
SECTION 2.2.......Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is 1201 N.
Market Street, Wilmington, Delaware 19801, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Depositor. The principal executive office of the Trust is 2244 Walnut Grove
Avenue, Rosemead, California 91770.
SECTION 2.3.......Organizational Expenses.
The Depositor shall pay organizational expenses of the Trust as they arise
or shall, upon request of any Trustee, promptly reimburse such Trustee for any
such
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expenses paid by such Trustee. The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.
SECTION 2.4.......Issuance of the Preferred Securities.
The Depositor, on behalf of the Trust and pursuant to the Original Trust
Agreement, executed and delivered the Underwriting Agreement. On the Closing
Date, a Regular Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.2, and the Property Trustee shall deliver 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 20,000,000 Preferred Securities having an aggregate Liquidation
Amount of $500,000,000, against receipt by the Property Trustee of the aggregate
purchase price of such Preferred Securities of $500,000,000. In the event that
the Underwriters shall exercise their Over-allotment Option, on the Second
Closing Date, a Regular Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2, and the Property Trustee shall deliver 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 up to 3,000,000,000 Preferred Securities
having an aggregate Liquidation Amount of up to $75,000,000, against receipt by
the Property Trustee of the aggregate purchase price of such Preferred
Securities in an amount equal to such aggregate Liquidation Amount, all in
accordance with the terms of such exercise.
SECTION 2.5.......Issuance of the Common Securities; Subscription and Purchase
of Notes.
On the Closing Date, a Regular Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2, and the Property Trustee shall deliver
to the Depositor, Common Securities Certificates, registered in the name of the
Depositor, evidencing an aggregate of 618,560 Common Securities having an
aggregate Liquidation Amount of $15,464,000 against receipt by the Property
Trustee from the Depositor of such amount. Contemporaneously therewith, a
Regular Trustee, on behalf of the Trust, shall subscribe to and purchase from
the Depositor Notes, registered in the name of the Property Trustee (in its
capacity as such) and having an aggregate principal amount equal to
$515,464,000, and, in satisfaction of the purchase price for such Notes, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the sum
of $515,464,000 (being the sum of the amounts delivered to the Property Trustee
pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence
of this Section 2.5). In the event that the Underwriters shall exercise their
Over-allotment Option, on the Second Closing Date, a Regular Trustee, on behalf
of the Trust, shall execute in accordance with Section 5.2, and the Property
Trustee shall deliver to the Depositor, Common Securities Certificates,
registered in the name of the Depositor, evidencing an aggregate of up to 92,784
Common Securities having an aggregate Liquidation Amount of up to $2,319,600
(such number and aggregate Liquidation Amount to be equal, unless otherwise
agreed by the Depositor and the Underwriters, to 3/97 of the number and
aggregate Liquidation Amount, respectively, of Preferred Securities to be
executed and delivered pursuant to the third sentence of Section 2.4, rounded
(A) in the case of such number, up to the nearest
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whole number and (B) in the case of such amount, to the product of such
number multiplied by $25), against receipt by the Property Trustee from the
Depositor of such amount. Contemporaneously therewith, a Regular Trustee, on
behalf of the Trust, shall subscribe to and purchase from the Depositor Notes,
registered in the name of the Property Trustee (in its capacity as such) and
having an aggregate principal amount equal to the sum of the aggregate
Liquidation Amounts of (x) the Preferred Securities to be executed and delivered
pursuant to the third sentence of Section 2.4 and (y) the Common Securities to
be executed and delivered pursuant to the third sentence of this Section 2.5,
and, in satisfaction of the purchase price for such Notes, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor an amount equal to such
sum.
SECTION 2.6.......Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Notes, (b)
to distribute the cash payments it receives on the Notes it owns to the
Securityholders, and (c) to engage in only those activities necessary,
appropriate, convenient or incidental thereto. The Depositor 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 2.7.......Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), 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 Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) Each Regular Trustee, acting singly or collectively, shall have the
power and authority to act on behalf of the Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and the
Certificate
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Depository Agreement and such other agreements as may
be necessary or desirable in connection with the purposes and
function of the Trust;
(C) 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 Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the
Depositor 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;
(E) assisting in the sending of notices (other than notices of
default) and other information regarding the Trust Securities and
the Notes to the Securityholders in accordance with this Trust
Agreement;
(F) consenting to the appointment of a Paying Agent in accordance
with this Trust Agreement;
(G) execution of the Trust Securities on behalf of the Trust in
accordance with this Trust Agreement;
(H) execution and delivery of closing certificates pursuant to the
Underwriting Agreement and application for a taxpayer
identification number for the Trust;
(I) unless otherwise determined by the Depositor, 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 Trust
Agreement; and
(J) 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 Trust Agreement for
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).
(ii) The Property Trustee shall have the power, duty and authority to act
on behalf of the Trust with respect to the following matters:
(A) the establishment of the Payment Account;
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(B) the receipt of the Notes;
(C) the collection of interest, principal and any other payments made
in respect of the Notes in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a
holder of the Notes;
(F) the sending of notices of default and other information regarding
the Trust Securities and the Notes to the Securityholders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the
terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, 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;
(I) 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 Trust Agreement 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); and
(J) any of the duties, liabilities, powers or the authority of the
Regular Trustees set forth in Section 2.7(a)(i)(E), (F) and (J);
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) So long as this Trust Agreement 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 Notes, (ii) engage in any activities not
authorized by this Trust Agreement, (iii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Securityholders, except as expressly provided
herein, (iv) take any action that would cause the Trust to fail or cease to
qualify as a "grantor trust" for United States federal income tax purposes, (v)
incur any indebtedness for borrowed money or issue any other debt or (vi) take
or consent to any action that would result in the placement of a Lien on any of
the Trust Property. The
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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
Depositor and (y) the Property Trustee shall be fully indemnified by the
Depositor for all costs incurred in connection with such defense.
(c) In connection with the issue and sale of the Preferred Securities, the
Depositor 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 Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and the
execution on behalf of the Trust of a registration statement on the appropriate
form in relation to the Preferred Securities, including any amendments thereto;
(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 Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(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.
(d) 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
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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 Notes will be treated as indebtedness of the Depositor for
United States Federal income tax purposes. In this connection, the Depositor and
the Trustees are authorized to take any action, not inconsistent with applicable
law, the Certificate of Trust or this Trust Agreement, that each of the
Depositor 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.
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
Article III
PAYMENT ACCOUNT
SECTION 3.1. 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 Trust Agreement. 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 Notes. Amounts held in the Payment
Account shall not be invested by the Property Trustee pending distribution
thereof.
Article IV
DISTRIBUTIONS; REDEMPTION
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the Trust
Property, and Distributions (including of Additional Amounts) will be made on
the
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Trust Securities at the rate and on the dates that payments of interest
(including of Additional Interest, as defined in the Indenture) are made on the
Notes. Accordingly:
(i) Distributions on the Trust 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 July 26, 1999, and, except in
the event (and to the extent) that the Depositor exercises its right to defer
the payment of interest on the Notes pursuant to the Indenture, shall be payable
quarterly in arrears on August 31, November 30, February 28 and May 31 of each
year, commencing on August 31, 1999. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date (each date on which distributions are payable in accordance with this
Section 4.1(a), a "Distribution Date").
(ii) Assuming payments of interest on the Notes are made when due (and
before giving effect to Additional Amounts, if applicable), Distributions on the
Trust Securities shall be payable at a rate of 7.875% per annum of the
Liquidation Amount of the Trust 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 Trust 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 Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust 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 4.2. Redemption.
(a) On each Indenture Redemption Date and on the stated maturity of the
Notes, the Trust will be required to redeem a Like Amount of Trust Securities at
the Redemption Price.
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(b) Notice of redemption shall be given by the Property Trustee at the
expense of the Depositor 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
Holder of Trust Securities 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 Trust Securities are to be redeemed,
the identification and the total Liquidation Amount of the particular Trust
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 4.2(d).
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Notes. Redemptions of the Trust 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 4.2(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 4.2(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 Trust
Securities called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Register for the Trust Securities on the
relevant record dates for the related Distribution Dates. If notice of
redemption
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shall have been given and funds deposited as required, then upon the date
of such deposit, all rights of Securityholders holding Trust 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 Trust 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 Trust Securities will continue to accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust for such Trust 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 Trust Securities shall be made
to the recordholders thereof as they appear on the Securities Register for the
Trust 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 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust 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 Trust Agreement, 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.
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SECTION 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if applicable)
on, and the Redemption Price of, the Trust Securities, as applicable, shall be
made, subject to Section 4.2(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the Trust 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 act with respect to any such Event of Default under
this Trust Agreement 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 Trust Agreement 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 4.4. 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.
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SECTION 4.5. Tax Returns and Reports.
The Regular Trustees shall prepare (or cause to be prepared), at the
Depositor'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 Depositor 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 Trust
Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Notes of Additional Sums, the Property Trustee,
pursuant to written instructions from the Depositor detailing the payments to be
made, shall promptly pay at the expense of the Depositor 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 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder has directly
received pursuant to Section 2.19 of the Supplemental Indenture or Section 5.14
of this Trust Agreement.
Article V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Trust and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
SECTION 5.2. Trust Securities 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
Trust Securities Certificates shall be executed on behalf of the Trust by manual
signature of at
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least one Regular Trustee. Trust Securities Certificates bearing the manual
ignatures 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 Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities 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 Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Closing Date and the Second Closing Date (if any), the Regular
Trustees shall cause Trust Securities Certificates to be executed on behalf of
the Trust and delivered by the Property Trustee as provided in Sections 2.4 and
2.5.
SECTION 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which the
registrar designated by the Depositor (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 5.10 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 office or agency maintained pursuant to Section 5.8, 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 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of
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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 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities 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 Trust Securities
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 Trust Securities
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 Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities 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 Trust Securities 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 Trust Securities Certificate shall be found at any time.
SECTION 5.6. Persons Deemed Securityholders.
The Trustees or the Securities Registrar shall treat the Person in whose
name any Trust Securities Certificate shall be registered in the Securities
Register as the owner of such Trust Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and neither the
Trustees nor the Securities Registrar shall be bound by any notice to the
contrary.
SECTION 5.7. Access to List of Securityholders' Names and Addresses.
The Regular Trustees or the Depositor shall furnish or cause to be
furnished to the Property Trustee (a) semi-annually on or before January 15 and
July 15 in each year, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Securityholders as of the
most recent record date and (b) promptly after receipt by any Regular Trustee or
the Depositor of a request for such list from the Property Trustee in order to
enable the Property Trustee to discharge its
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obligations under this Trust Agreement, a list of the type referred to in
clause (a), in each case to the extent such information is in the possession or
control of the Regular Trustees or the Depositor and is not identical to a
previously supplied list or has not otherwise been received by the Property
Trustee in its capacity as Securities Registrar. The rights of Securityholders
to communicate with other Securityholders with respect to their rights under
this Trust Agreement or under the Trust Securities, and the corresponding rights
of the Property Trustee shall be as provided in the Trust Indenture Act. Each
Securityholder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee or the Regular Trustees accountable by reason of
the disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 5.8. 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 Trust Securities 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 Depositor and to the Securityholders of any
change in the location of the Securities Register or any such office or agency.
SECTION 5.9. 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 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as
Paying Agent,
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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 5.10. Ownership of Common Securities by Depositor.
On the Closing Date and on the Second Closing Date (if any), the Depositor
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 Depositor into another
corporation, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 801 of the Indenture, any attempted transfer of the Common Securities
shall be void. The Regular Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES SET
FORTH IN THE TRUST AGREEMENT (AS DEFINED BELOW)."
SECTION 5.11. 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 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and
effect;
(ii) the Securities Registrar, the Depositor and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this Trust
Agreement 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;
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(iii) to the extent that the provisions of this Section 5.11 conflict with
any other provisions of this Trust Agreement, the provisions of this Section
5.11 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
Certificate Depository Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section 5.13, 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 Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, 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 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor 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 Depositor is
unable to locate a qualified successor, (b) the Depositor 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
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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.
SECTION 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, 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
Trust 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 Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust 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 Holders of the Trust Securities, 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 Indenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Notes fail to declare the
principal of all of the Notes 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 Depositor and
the Indenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Notes shall become immediately due and
payable, provided that the payment of principal and interest on such Notes shall
remain subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to the
Notes has been made and before a judgment or decree for payment of the money due
has been obtained by the Indenture 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 Depositor
and the Indenture Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Depositor has paid or deposited with the Indenture Trustee a sum
sufficient to pay
(A) all overdue installments of interest (including any Additional
Interest (as defined in the Indenture)) on all of the Notes,
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(B) the principal of any Notes which have become due otherwise than
by such declaration of acceleration and interest thereon at the
rate borne by the Notes, and
(C) all sums paid or advanced by the Indenture Trustee under the
Indenture and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and the
Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Notes, other than the
non-payment of the principal of the Notes 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 Notes (unless
such default has been cured and a sum sufficient to pay all matured installments
of interest and principal due otherwise than by acceleration has been deposited
with the Indenture 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 Note. 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 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 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon an Indenture Event of Default specified in Section 501
(1) or (2) of the
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Indenture, any Holder of Preferred Securities shall have the right to
institute a proceeding directly against the Depositor, pursuant to Section 508
of the Indenture, for enforcement of payment to such Holder of the principal
amount of or interest on Notes having a principal amount equal to the
Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Notes.
Article VI
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 2.7, 5.14, 8.10 and
10.2 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
contained in the terms of the Trust Securities 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 Notes 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 Indenture Trustee, or executing any trust or power
conferred on the Property Trustee with respect to such Notes, (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 Notes shall be due and payable or (iv) consent to any amendment,
modification or termination of the Indenture or the Notes, 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 Notes 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 Indenture Trustee with
respect to the Notes. 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 Depositor, 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 Trust Agreement 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,
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whether by way of amendment to this Trust Agreement or otherwise, or (ii)
the dissolution, winding-up or termination of the Trust, other than pursuant to
the terms of this Trust Agreement, 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
Trust Agreement, no amendment to this Trust Agreement 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 6.2. 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 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
SECTION 6.3. 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 Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.
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SECTION 6.5. 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 Trust 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 Trust 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 Trust 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 6.6. 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 Trust 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 Trust Agreement) shall
consent to the action in writing. SECTION 6.7. 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 Trust Securities in respect of which a
record date is not otherwise provided for in this Trust Agreement, 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 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement 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
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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 Trust Agreement 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.
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 VI, then the determination of such matter by the Property Trustee shall
be conclusive and binding with respect to such matter.
SECTION 6.9. 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.
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Article VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware 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
Depositor 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 Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Trust Agreement;
(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 Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and delivered
by the Property Trustee and the Delaware Trustee and constitutes the valid and
legally binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement 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 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants that:
(a) this Trust Agreement has been duly authorized, executed and delivered
by the Depositor and constitutes the valid and legally binding agreement of the
Depositor 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;
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(b) the Trust Securities Certificates issued on the Closing Date and the
Second Closing Date (if any) 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 Trust Agreement and the Securityholders will be, as of
each such date, entitled to the benefits of this Trust Agreement; 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 Trust Agreement.
Article VIII
THE TRUSTEES
SECTION 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, subject to the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
them. Whether or not therein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release a Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct. To the extent that, at law or in equity, a
Trustee has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to the Securityholders, such Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of the Trustees
otherwise existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only to the extent that there shall be sufficient revenue
or proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any
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Trust Security or for any other liability in respect of any Trust Security.
This Section 8.1(b) does not limit the liability of the Trustees expressly set
forth elsewhere in this Trust Agreement or, in the case of the Property Trustee,
in the Trust Indenture Act.
(c) No provision of this Trust Agreement 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) The Property Trustee shall not be liable for any error of judgment made
in good faith by an authorized officer of the Property Trustee, unless it shall
be proved that the Property Trustee was negligent in ascertaining the pertinent
facts;
(ii) 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 aggregate Liquidation
Amount of the Trust Securities 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
Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Notes and the Payment Account shall be
to deal with such Property in a similar manner as the Property Trustee deals
with similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
(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 Depositor; 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; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Regular Trustees or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Regular Trustees or the Depositor.
SECTION 8.2. Certain Notices.
Within 90 days after the occurrence of any Event of Default actually known
to the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.8, notice of such Event of Default to the
Securityholders, the Regular Trustees and the Depositor, unless such Event of
Default shall have been cured or waived.
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Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Notes pursuant to
the Indenture, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.8, notice of such exercise to the Securityholders
and the Regular Trustees, unless such exercise shall have been revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement 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 Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall take such action, or refrain from taking
such action, not inconsistent with this Trust Agreement 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;
(c) any direction or act of the Depositor or the Regular Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officer's Certificate;
(d) whenever in the administration of this Trust Agreement, 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 Depositor or the Regular
Trustees;
(e) 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;
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(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor 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 Depositor 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 Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) 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,
unless requested in writing to do so by one or more Securityholders;
(i) 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, provided that the Property Trustee shall be responsible for its own
negligence or recklessness with respect to selection of any agent or attorney
appointed by it hereunder in due care;
(j) whenever in the administration of this Trust Agreement 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 Holders of the Trust
Securities which written instructions may only be given by the Holders of the
same proportion in aggregate Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the Trust
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
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement 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
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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 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Notes.
SECTION 8.5. 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 Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
SECTION 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation 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 Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; 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 Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
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The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement 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 8.6.
The Depositor and any Trustee (subject to Section 8.8) may engage in or
possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Trust Securities shall have no rights by
virtue of this Trust Agreement in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Depositor, 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 Depositor or any Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the Depositor
or any Affiliate of the Depositor, 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 Depositor or its Affiliates.
SECTION 8.7. 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 Trust 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 Depositor.
(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
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SECTION 8.8. 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 8.9. 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 Depositor 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 Depositor shall for such purpose
join with the Regular Trustees in the execution, delivery, and performance of
all instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Property Trustee either to act as co-trustee, jointly
with the Property Trustee, of all or any part of such Trust Property, or to the
extent required by law to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of
appointment, and to vest in such Person or Persons in the capacity aforesaid,
any property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Depositor 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 Depositor 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 Depositor.
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 Trust 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.
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(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 Depositor, 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 Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. 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 8.11.
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 8.11 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 Trust, 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
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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 8.11. 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 8.11. 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 8.11. 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 8.11, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall, at the expense of the Depositor, 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 10.8
and shall give notice to the Depositor. 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 Trust
Agreement, in the event any Regular Trustee or a Delaware Trustee who is a
natural person dies or becomes, in the opinion of the Depositor, 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 Depositor (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
8.7).
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SECTION 8.11. 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 Trust 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
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement 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 Trust 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.
SECTION 8.12. 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 8.13. Preferential Collection of Claims Against Depositor or Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar
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judicial proceeding relative to the Trust or any other obligor upon the
Trust 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 Trust 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 Trust 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 Trust
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 8.14. Reports by Property Trustee.
(a) Not later than 60 days following May 15 of each year commencing with
May 15, 2000, the Property Trustee shall transmit to all Securityholders in
accordance with Section 10.8, and to the Depositor, a brief report dated as of
such May 15 with respect to:
(i) its eligibility under Section 8.7 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 Trust Securities.
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(b) In addition the Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(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 Trust Securities are listed or
traded (information regarding each such listing to be provided to the Property
Trustee by the Depositor), with the Commission and with the Depositor.
SECTION 8.15. Reports to the Property Trustee.
The Depositor 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(a) of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor 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 Trust 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 Section
314(c)(1) of the Trust Indenture Act shall be given in the form of an Officer's
Certificate.
SECTION 8.17. Number of Trustees.
(a) The number of Trustees shall initially be five, provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Regular Trustees. The Property Trustee and the Delaware
Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and, if such Trustee
is a Regular Trustee, the number of Regular Trustees is not reduced pursuant to
Section 8.17(a), or if the number of Trustees is increased pursuant to Section
8.17(a), a vacancy shall occur. The vacancy shall be filled with a Trustee
appointed in accordance with Section 8.10.
(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 8.10, the Regular
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the
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powers granted to the Regular Trustees and shall discharge all the duties
imposed upon the Regular Trustees by this Trust Agreement.
SECTION 8.18. 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
2.7(a); and
(b) The Regular Trustees shall have power to delegate from time to time to
such of their number or to the Depositor 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 Trust Agreement, as set forth herein.
SECTION 8.19. 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 Chase Manhattan Bank
Delaware are executed and delivered not in its individual capacity but solely as
Delaware Trustee under this Trust Agreement in exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements herein made by Chase Manhattan Bank Delaware on the
part of the Trust is made and intended not as representations, warranties,
covenants, undertakings and agreements by Chase Manhattan Bank Delaware in its
individual capacity but is made and intended for the purpose of binding only the
Trust, and (iii) under no circumstances shall Chase Manhattan Bank 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 Trust Agreement, except if such breach or failure is due to any
negligence or willful misconduct of the Delaware Trustee.
Article IX
TERMINATION, LIQUIDATION AND MERGER
SECTION 9.1. Termination Upon Expiration Date.
Unless earlier dissolved, the Trust shall automatically dissolve on July
26, 2054 (the "Expiration Date"), and the Trust Property shall be distributed in
accordance with Section 9.4.
SECTION 9.2. 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:
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(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor at any
time to dissolve the Trust and distribute Notes to Securityholders in exchange
for the Preferred Securities (which direction is optional and wholly within the
discretion of the Depositor);
(c) the redemption of all of the Preferred Securities in connection with
the redemption of all the Notes; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.3. 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 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
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 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by
the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Notes,
subject to Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee at the expense of the Depositor by first-class mail, postage prepaid
mailed not later than 30 nor more than 60 days prior to the Liquidation Date to
each Holder of Trust Securities 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 Trust Securities
will no longer be deemed to be Outstanding and any Trust Securities Certificates
not surrendered for exchange will be deemed to represent a Like Amount of Notes;
and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Notes, or if Section
9.4(d) applies, receive a Liquidation Distribution.
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(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Notes 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 Notes in exchange for
the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Notes will be issued to holders of
Trust Securities Certificates, upon surrender of such certificates to the
Property Trustee or its agent for exchange, (iii) the Depositor shall use its
best efforts to have the Notes 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 Trust Securities Certificates
not so surrendered for exchange will be deemed to represent a Like Amount of
Notes, accruing interest at the rate provided for in the Notes from the last
Distribution Date on which a Distribution was made on such Trust Securities
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 Trust Securities Certificates with respect to such Notes) and
(v) all rights of Securityholders holding Trust Securities will cease, except
the right of such Securityholders to receive Notes upon surrender of Trust
Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Notes in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be wound-up by the Property
Trustee in such manner as the Property Trustee determines. In such event,
Securityholders will be entitled to receive out of the assets of the Trust
available for distribution to Securityholders, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, an amount equal to the
Liquidation Amount per 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 Trust 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.
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SECTION 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the 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 9.5
or Section 9.4. At the request of the Depositor, 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 Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Notes, (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 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 Depositor 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 Depositor
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.
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Article X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Limitation of Rights of Securityholders.
Except as otherwise provided in Section 9.2, the death, dissolution,
termination, bankruptcy or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate this
Trust Agreement, 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 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee, the Regular Trustees and the Depositor, without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, or (ii) to modify, eliminate or add to any provisions of this
Trust Agreement 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 Trust 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 Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Securityholders representing a majority (based upon aggregate
Liquidation Amount) of the Trust 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 Trust
Agreement, without the consent of each affected Securityholder, this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust 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
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date; notwithstanding any other provision herein, without the unanimous
consent of the Securityholders, this paragraph (c) of this Section 10.2 may not
be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
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 Trust Agreement to the contrary, this
Trust Agreement may not be amended in a manner which imposes any additional
obligation on the Depositor, the Property Trustee or the Delaware Trustee
without the consent of the Depositor, the Property Trustee or the Delaware
Trustee, as the case may be.
(f) In the event that any amendment to this Trust Agreement is made, the
Regular Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officer's Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement and that all conditions precedent, if any, to such amendment
have been complied with.
SECTION 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
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 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
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 10.5. 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 4.1(a) and 4.2(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.
51
<PAGE>
SECTION 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, 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 Depositor that is permitted
under Article Eight of the Indenture and pursuant to which the assignee agrees
in writing to perform the Depositor's obligations hereunder, the Depositor shall
not assign its obligations hereunder.
SECTION 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
SECTION 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Edison
International, 2244 Walnut Grove Avenue, Rosemead, California 91770, Attention:
Corporate Secretary, facsimile no.: 626-302-2662. 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
Trust Agreement 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 Chase Manhattan
Bank, at its Corporate Trust Office, Attention: Capital Markets Fiduciary
Services; (b) with respect to the Delaware Trustee, to Chase Manhattan Bank
Delaware, 1201 N. Market Street, Wilmington, Delaware 19801, Attention:
Corporate Trust; (c) with respect to the Regular Trustees, to them c/o Edison
International, 2244 Walnut Grove Avenue, Rosemead, California 91770, marked
"Attention Regular Trustees of EIX Trust I"; and (d) with respect to the Trust,
to its principal office specified in Section 2.1, 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.
52
<PAGE>
SECTION 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor 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 IX, 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 Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor 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 10.9 shall survive the
termination of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement 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 any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement 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 Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 10.11. Acceptance of Terms of Trust Agreement, 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 TRUST SECURITY OF ALL THE TERMS AND
53
<PAGE>
PROVISIONS OF THIS TRUST AGREEMENT 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 TRUST AGREEMENT 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.
54
<PAGE>
EDISON INTERNATIONAL
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
Name:
Title:
THEODORE F. CRAVER, JR.,
as Regular Trustee
By:
Name:
Title:
55
<PAGE>
JAMES R. BERG,
as Regular Trustee
By:
Name:
Title:
MARY C. SIMPSON,
as Regular Trustee
By:
Name:
Title:
56
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
EIX TRUST I
THIS Certificate of Trust of EIX Trust I (the "Trust"), dated
June 30, 1999, is being duly executed and filed by the undersigned, as trustees
of the Trust, with the Secretary of State of the State of Delaware to form a
business trust under the Delaware Business Trust Act (12 Del. C. ss.3801 et
seq.).
1. Name. The name of the business trust being formed hereby is EIX Trust I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 N. Market Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon filing
with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
CHASE MANHATTAN BANK DELAWARE,
as trustee
By: /s/ Dennis Kelly
Name: Dennis Kelly
Title: Assistant Vice President
THE CHASE MANHATTAN BANK,
as trustee
By: /s/ Alfia Monastra
Name: Alfia Monastra
Title: Assistant Vice President
<PAGE>
EXHIBIT B
Letter of Representations
[To be Completed by Issuer and Agent]
EIX Trust I, a Delaware business trust
- -------------------------------------------------------------------------------
[Name of Issuer]
The Chase Manhattan Bank
- -------------------------------------------------------------------------------
[Name of Agent]
- -------------------------------------------------------------------------------
[Date]
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street; 49th Floor
New York, NY 10041-0099
Re: EIX Trust I__% Cumulative Quarterly Income Preferred Securities,
Series [___]
CUSIP #:___
[Issue Description, including CUSIP number]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). Issuer is selling the
Securities to [Goldman Sachs & Co. and others] (the "Initial Purchasers")
pursuant to an Underwriting Agreement dated _______ __, 199__ (the "Document").
Initial Purchaser will take delivery of the Securities through The Depository
Trust Company ("DTC"). The Chase Manhattan Bank is acting as transfer agent,
paying agent, and registrar with respect to the Securities (the "Agent").
<PAGE>
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on ____________, 199__, there shall
be deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co., for each of the Securities with the offering value set
forth on Schedule A hereto, the total of which represents 100% of the offering
value of such Securities. If, however, the offering value of any Security
exceeds $200 million, one certificate will be issued with respect to each $200
million of offering value and an additional certificate will be issued with
respect to any remaining offering value. Each Security certificate shall bear
the following legend:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
If the Securities will be held by Agent, as custodian for DTC, such
Security certificate shall remain in Agent's custody pursuant to the provisions
of the FAST Balance Certificate Agreement currently in effect between Agent and
DTC.
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificate(s) by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall send notice of such record date to DTC not less than 15
calendar days in advance of such record date. Notices to DTC pursuant to this
Paragraph by telecopy shall be sent to DTC's Reorganization Department at (212)
709-6896 or (212) 709-6897, and receipt of such notices shall be confirmed by
telephoning (212) 709-6870. Notices to DTC pursuant to this Paragraph by mail or
by any other means shall be sent to DTC's Reorganization Department as indicated
in Paragraph 7.
4. In the event of a stock split, recapitalization, conversion, or any
similar transaction resulting in the cancellation of all or any part of the
Securities represented
<PAGE>
thereby, the Agent shall send DTC a notice of such event as soon as
practicable, but in no event less than five business days prior to the effective
date of such transaction.
5. In the event of a full or partial redemption, Issuer or Agent shall send
a notice to DTC specifying: (a) the amount of the redemption or refunding; (b)
in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security holders
or published (the "Publication Date"). Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before or, if
possible, two business days before the Publication Date. Issuer or Agent shall
forward such notice either in a separate secure transmission for each CUSIP
number or in a secure transmission for multiple CUSIP numbers (if applicable)
which includes a manifest or list of each CUSIP number submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness of such notice.) The
Publication Date shall be not less than 30 days nor more than 60 days prior to
the redemption date or, in the case of an advance refunding, the date that the
proceeds are deposited in escrow. Notices to DTC pursuant to this Paragraph by
telecopy shall be sent to DTC's Call Notification Department at (516) 227-4039
or (516) 227-4190. If the party sending the notice does not receive a telecopy
receipt from DTC confirming that the notice has been received, such party shall
telephone (516) 227-4070. Notices to DTC pursuant to this Paragraph by mail or
by any other means shall be sent to:
Manager; Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
6. In the event of an offering or issuance of rights with respect to the
Securities outstanding, Agent shall send DTC's Dividend and Reorganization
Departments a notice specifying: (a) the amount of and conditions, if any,
applicable to such rights offering or issuance; (b) any applicable expiration or
deadline date, or any date by which any action on the part of holders of such
Securities is required; and (c) the Publication Date of such notice.
The Publication Date will be as soon as practicable after the announcement
by the Company of any such offering or issuance of rights with respect to the
Securities represented thereby. DTC requires that the Publication Date be not
less than 30 days nor more than 60 days prior to the related payment date,
distribution date, or issuance date, respectively.
Notices to DTC pursuant to this Paragraph by telecopy shall be sent to
DTC's Dividend Department at (212) 709-1623, and receipt of such notices shall
be confirmed by telephoning (212) 709-1282. Notices to DTC pursuant to the above
by mail or any other means shall be sent to:
<PAGE>
Supervisor; Stock Dividends
Dividend Department
7 Hanover Square; 24th Floor
New York, NY 10004-2695
Notices to DTC pursuant to this Paragraph by telecopy shall be sent to
DTC's Reorganization Department at (212) 709-1093, and receipt of such fax shall
be confirmed by telephoning (212) 709-1063. Notices to DTC pursuant to the above
by mail or any other means shall be sent to:
Supervisor; Rights Offerings
Reorganization Department
7 Hanover Square; 23rd Floor
New York, NY 10004-2695
7. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders specifying the terms of the tender and the Publication Date of
such notice shall be sent to DTC by a secure means in the manner set forth in
Paragraph 5. Notices to DTC pursuant to this Paragraph and notices of other
corporate actions by telecopy shall be sent to DTC's Reorganization Department
at (212) 709-1093 or (212) 709-1094, and receipt of such notices shall be
confirmed by telephoning (212) 709-6884. Notices to DTC pursuant to the above by
mail or by any other means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square; 23rd Floor
New York, NY 10004-2695
8. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities (listed on Schedule A hereto) and the accompanying
description of such Securities, which, as of the date of this letter, is "_EIX
Trust I __% Cumulative Quarterly Income Preferred Securities, Series [ ]."
9. Issuer or Agent shall provide written notice of dividend payment
information to a standard dividend announcement service subscribed to by DTC as
soon as the information is available. In the event that no such service exists,
Issuer or Agent shall provide such notice directly to DTC electronically, as
previously arranged by Issuer or Agent and DTC, as soon as the payment
information is available. If electronic transmission has not been arranged,
absent any other arrangements between Issuer or Agent and DTC, such information
should be sent by telecopy to DTC's Dividend Department at (212) 709-1723 or
(212) 709-1686, and receipt of such notices shall be confirmed by telephoning
(212) 709-1270. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
<PAGE>
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square; 22nd Floor
New York, NY 10004-2695
After establishing the amount of payment to be made on the Securities in
question, Issuer or Agent will notify DTC's Dividend Department of the payment
and payment date preferably five, but not less than two, business days prior to
the effective date for such transaction.
10. Issuer or Agent shall provide CUSIP-level detail for dividend payments
to DTC no later than noon (Eastern Time) on the payment date.
11. Dividend payments and cash distributions shall be received by Cede &
Co. as nominee of DTC, or its registered assigns, in same-day funds no later
than 2:30 p.m. (Eastern Time) on each payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired as
follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # 066-026776
12. Redemption payments shall be received by Cede & Co., as nominee of DTC,
or its registered assigns, in same-day funds no later than 2:30 p.m. (Eastern
Time) on payment date. Absent any other arrangements between Agent and DTC, such
funds shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
13. Reorganization payments resulting from corporate actions (such as
tender offers or mergers) shall be received by Cede & Co., as nominee of DTC, or
its registered assigns, in same-day funds no later than 2:30 p.m. (Eastern Time)
on payment date. Absent any other arrangements between Agent and DTC, such funds
shall be wired as follows:
The Chase Manhattan Bank
ABA # 021 000 021
For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # 066-027608
<PAGE>
14. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of dividends, distributions,
or redemption proceeds may be sent.
15. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in the number of Securities outstanding, except in the case of final
redemption, in which case the certificate will be presented to Issuer or Agent
prior to payment, if required.
16. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
17. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts.
18. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
19. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together constitute but one and the same instrument.
20. This Letter of Representations is governed by, and shall be construed
in accordance with, the laws of the State of New York.
21. The following riders, attached hereto, are hereby incorporated into
this Letter of Representations:
<PAGE>
Notes:
A. If there is an Agent (as defined
in this Letter of Representations),
Agent as well as Issuer must sign
this Letter. If there is no Agent,
in signing this Letter Issuer itself Very truly yours,
undertakes to perform all of the
obligations set forth herein.
B. Schedule B contains statements
that DTC believes accurately describes
DTC, the method of effectingbook-entry EIX Trust I, a Delaware business trust
transfers of securities distributed
through DTC, and certain related
matters. By:
(Authorized Officer's Signature)
The Chase Manhattan Bank
(Agent)
By:
(Authorized Officer's Signature)
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
CC: Underwriter
Underwriter's Counsel
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES
SET FORTH IN THE TRUST AGREEMENT
(AS DEFINED BELOW).
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-1
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
EIX TRUST I
7.875% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
EIX Trust I, a statutory business trust created under the laws of the State
of Delaware (the "Trust"), hereby certifies that Edison International (the
"Holder") is the registered owner of the number set forth above of common
securities of the Trust representing beneficial interests of the Trust and
designated the 7.875% Common Securities (liquidation amount $25 per Common
Security) (the "Common Securities"). Except as provided in Section 5.10 of the
Trust Agreement (as defined below), the Common Securities are not transferable
and any attempted transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of July 26, 1999, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust has executed
this certificate this ___ day of ______, ____.
<PAGE>
EIX TRUST I
By:
Name:
Title: Regular Trustee
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of July 26, 1999 between Edison International, a
California corporation, and EIX Trust I, a Delaware business trust (the
"Trust"). Capitalized terms used but not defined herein have the meanings
ascribed to such terms in the Trust Agreement (as defined below).
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Notes from Edison International and to issue and
sell 7.875% Cumulative Quarterly Income Preferred Securities, Series A (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of July 26, 1999, as the same may be amended from time to time
(the "Trust Agreement");
WHEREAS, Edison International will directly or indirectly own all of the
Common Securities of the Trust and will issue the Notes;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Edison International hereby agrees shall
benefit Edison International and which purchase Edison International
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, Edison International and the Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by Edison International
Subject to the terms and conditions hereof, Edison International hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
<PAGE>
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated as of the date hereof between Edison International and
The Chase Manhattan Bank, as guarantee trustee, or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.3. Waiver of Notice.
Edison International hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and Edison International
hereby waives presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of Edison International
under this 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 extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) 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 Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, Edison International with respect to the happening of any
of the foregoing.
<PAGE>
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Edison
International and Edison International waives any right or remedy to require
that any action be brought against the Trust or any other person or entity
before proceeding against Edison International.
SECTION 1.6. Subrogation.
Edison International shall be subrogated to all (if any) rights of any
Beneficiary against the Trust, in respect of any amounts paid to the
Beneficiaries by Edison International under this Agreement; provided, however,
that Edison International 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 Trust by way of subrogation or any indemnity, reimbursement
or other agreement, in all cases as a result of payment under this Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Edison
International and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail) or by registered or
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of a confirmation, if sent by facsimile):
EIX Trust I
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-302-1930
Attention: Corporate Governance
<PAGE>
Edison International
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-302-2662
Attention: Corporate Secretary
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
THIS AGREEMENT is executed as of the day and year first above written.
EDISON INTERNATIONAL
By:________________________________
Name:_________________________
Title:________________________
EIX TRUST I
By:________________________________
Name:_________________________
Title: Regular Trustee
<PAGE>
EXHIBIT E
IF THE PREFERRED SECURITY IS TO BE EVIDENCED BY A GLOBAL CERTIFICATE,
INSERT--This Preferred Securities Certificate is a Book-Entry Preferred
Securities Certificate within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of The Depository Trust Company (the
"Depositary") or a nominee of the Depositary. This Preferred Securities
Certificate is exchangeable for Preferred Securities Certificates registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Trust Agreement and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary, except in limited circumstances.
Unless this Preferred Security is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York) to EIX Trust I or
its agent for registration of transfer, exchange or payment, and any Preferred
Securities Certificate issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P-
CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
EIX TRUST I
7.875% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
EIX Trust I, a statutory business trust created under the laws of the State
of Delaware (the "Trust"), hereby certifies that ___________________ (the
"Holder") is the registered owner of the number set forth above of preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the EIX Trust I 7.875% Cumulative Quarterly
Income Preferred Securities, Series A (liquidation amount $25 per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of July 26, 1999, as the same may
be amended from time to time (the "Trust Agreement") including the designation
of the terms of Preferred Securities as set forth therein. The Holder is
entitled to the
<PAGE>
benefits of the Guarantee Agreement dated as of July 26, 1999 between
Edison International, a California corporation, and The Chase Manhattan Bank, as
guarantee trustee (as the same may be amended from time to time, the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust has executed
this certificate this _____ day of ________, ____.
EIX TRUST I
By:
Name:
Title: Regular Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- -----------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ---------------------------------------------
Signature:
- ---------------------------------------------------
(Sign exactly as your name appears
on the other side of this Preferred Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
GUARANTEE AGREEMENT
Between
EDISON INTERNATIONAL
(as Guarantor)
and
THE CHASE MANHATTAN BANK
(as Trustee)
dated as of
July 26, 1999
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
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.
<PAGE>
TABLE OF CONTENTS
(continued)
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions....................................................2
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application...............................4
Section 2.2 List of Holders; Preferential Claims...........................4
Section 2.3 Reports by the Guarantee Trustee...............................4
Section 2.4 Periodic Reports to the Guarantee Trustee......................4
Section 2.5 Evidence of Compliance with Conditions Precedent...............5
Section 2.6 Events of Default; Waiver......................................5
Section 2.7 Event of Default; Notice.......................................5
Section 2.8 Conflicting Interests..........................................5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee.....................5
Section 3.2 Certain Rights of Guarantee Trustee............................7
Section 3.3 Indemnity......................................................8
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee: Eligibility.................................9
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee..9
ARTICLE V
GUARANTEE
Section 5.1 Guarantee......................................................10
Section 5.2 Waiver of Notice and Demand....................................10
Section 5.3 Obligations Not Affected.......................................10
Section 5.4 Rights of Holders..............................................11
<PAGE>
Section 5.5 Guarantee of Payment...........................................11
Section 5.6 Subrogation....................................................11
Section 5.7 Independent Obligations........................................12
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1 Subordination..................................................12
Section 6.2 Pari Passu Guarantees..........................................12
ARTICLE VII
TERMINATION
Section 7.1 Termination....................................................12
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Successors and Assigns.........................................12
Section 8.2 Amendments.....................................................13
Section 8.3 Notices........................................................13
Section 8.4 Benefit........................................................14
Section 8.5 Interpretation.................................................14
Section 8.6 Governing Law..................................................15
<PAGE>
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of July 26, 1999, entered into
between EDISON INTERNATIONAL, a California corporation having its principal
office at 2244 Walnut Grove Avenue, Rosemead, California 91770(the "Guarantor"),
and THE CHASE MANHATTAN BANK, 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 EIX Trust [ ], a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
July 26, 1999 (the "Trust Agreement"), among Edison International, a
California corporation (the "Company"), as Depositor, 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 $575,000,000
aggregate Liquidation Amount (as defined in the Trust Agreement) of its 7.875%
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 Trust Agreement;
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 Trust Agreement), will be used to purchase the
Notes (as defined in the Trust Agreement) of the Company which will be deposited
with The Chase Manhattan Bank, as Property Trustee under the Trust Agreement, 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;
1
<PAGE>
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 Trust Agreement 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 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 Trust Agreement) 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" means The Chase Manhattan Bank, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"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,
2
<PAGE>
consent or waiver hereunder, "Holder" shall not include the Guarantor, the
Guarantee Trustee, or any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Subordinated Indenture dated as of July [___], 1999,
as supplemented and amended from time to time, between the Company and The Chase
Manhattan Bank, as trustee.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Preferred Securities" means, except
as provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the Liquidation Amount of all then
outstanding Preferred Securities issued by the Issuer.
"Officer's Certificate" means, with respect to any Person, a certificate
signed by 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 such Person, 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 any
Vice President, any Assistant Vice President, any Managing Director, any
Assistant Secretary, any Assistant Treasurer, any Senior Trust Officer, any
Assistant Trust Officer, any Trust Officer or any other officer associated with
the corporate trust department 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.
3
<PAGE>
"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.
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) semiannually, on
or before June 30 and December 31 of each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, 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 Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information is in
the possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. 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 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Guarantee Trustee. Not later than 60 days
following May 15 of each year, commencing May 15, 2000, the Guarantee Trustee
shall provide to the Holders such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Guarantee Trustee. The Guarantor shall
provide to the Guarantee Trustee, the Securities and Exchange Commission and the
Holders such documents, reports and information, if any, as required by Section
314 of the Trust Indenture Act and the compliance certificate required by
Section 314 of the Trust Indenture Act, in the form, in the manner and at the
times required by Section 314(a)(4) of the Trust Indenture Act.
4
<PAGE>
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 Preferred Securities may, by vote, on behalf of the
Holders, waive any past Event of Default and its consequences. Upon such waiver,
any such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
Section 2.7 Event of Default; Notice. (a) The Guarantee Trustee shall,
within 90 days after the occurrence of an Event of Default actually known to the
Guarantee Trustee, transmit by mail, first class postage prepaid, to the
Holders, notices of all such Events of Default, unless such defaults have been
cured or waived before the giving of such notice, 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.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice, of such Event of
Default.
Section 2.8 Conflicting Interests. The Trust Agreement and the Indenture
shall be deemed to be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
Article III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee. (a) This Guarantee
Agreement shall be held by the Guarantee Trustee for the benefit of the Holders,
and the Guarantee Trustee shall not transfer this Guarantee Agreement to any
Person except a Holder exercising his or her rights pursuant to Section 5.4(iv)
or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee. The right,
title and interest of the Guarantee Trustee shall automatically vest in any
Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee
of its appointment hereunder, and such
5
<PAGE>
vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor 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;
6
<PAGE>
(iii) the Guarantee Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in
Liquidation Amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Guarantee Trustee
shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of
this Guarantee Agreement or 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, and the written
advice or 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.
7
<PAGE>
(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
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; 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)
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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.
Article IV
GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee: Eligibility. (a) There shall at all times be
a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act to
act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of
Section 310(a) of the Trust Indenture Act. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining authority, then,
for the purposes of this Section and to the extent permitted by the
Trust Indenture Act, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or removed
without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor
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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;
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(c) any failure, omission, delay or lack of diligence on the part of the
Holders or the Guarantee Trustee to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders. The Guarantor expressly acknowledges that:
(i) this Guarantee Agreement will be deposited with the Guarantee Trustee to be
held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to
enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of
a Majority in Liquidation Amount of the Preferred Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer or any other Person.
Section 5.5 Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of performance or collection. This Guarantee
Agreement will not be discharged except by payment of the Guarantee Payments in
full (without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Notes to Holders as provided in the Trust Agreement.
Section 5.6 Subrogation. 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
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of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time of
any such payment, any amounts are due and unpaid under this Guarantee Agreement.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
Section 5.7 Independent Obligations. The Guarantor acknowledges that its
obligations hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
Article VI
COVENANTS AND SUBORDINATION
Section 6.1 Subordination. The obligations of the Guarantor 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 Edison International or its Affiliates.
Article VII
TERMINATION
Section 7.1 Termination. This Guarantee Agreement shall terminate and be of
no further force and effect upon (i) full payment of the Redemption Price of all
Preferred Securities, (ii) the distribution of Notes to the Holders in exchange
for all of the Preferred Securities or (iii) full payment of the amounts payable
in accordance with the Trust Agreement 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.
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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.
Section 8.2 Amendments. Except with respect to any changes which do not
adversely affect the rights of the Holders in any material respect (in which
case no consent of the Holders will be required), this Guarantee Agreement may
only be amended with the prior written approval of the Holders of a Majority in
Liquidation Amount of Preferred Securities. The provisions of Article VI of the
Trust Agreement 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:
Edison International
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-302-2662
Attention: Corporate Secretary
(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:
EIX Trust [ ]
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-302-1930
Attention: Corporate Governance
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with a copy to:
The Chase Manhattan Bank
455 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile No.: 212-946-8177/8178
Attention: Capital Markets Fiduciary Services
(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 Chase Manhattan Bank
455 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile No.: 212-946-8177/8178
Attention: Capital Markets Fiduciary Services
(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;
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(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
CALIFORNIA, EXCEPT THAT THE RIGHTS, DUTIES, IMMUNITIES AND INDEMNITIES OF THE
GUARANTEE TRUSTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
EDISON INTERNATIONAL
By:_______________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Guarantee Trustee
By:_______________________________
Name:
Title:
EDISON INTERNATIONAL
7.875% Subordinated Deferrable Interest Notes,
Series A
No. 001 $515,464,000
- -------
CUSIP No. 281020AA5
EDISON INTERNATIONAL, a corporation organized and existing under the laws
of the State of California (hereinafter called the "Corporation," which term
includes any successor Person under the Subordinated Indenture hereinafter
referred to), for value received, hereby promises to pay to The Chase Manhattan
Bank, as Property Trustee of EIX Trust I, or registered assigns, the principal
sum of up to $515,464,000 Dollars on July 26, 2029. The Corporation further
promises to pay interest on said principal sum from July 26, 1999 or from the
most recent Interest Payment Date on which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
August 31, November 30, February 28 and May 31 of each year (each such date, an
"Interest Payment Date"), commencing August 31, 1999, at the rate of 7.875% per
annum, until the principal hereof shall have become due and payable, plus
Additional Interest, if any, until the principal hereof is paid or duly provided
for or made available for payment and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the rate of 7.875% per
annum, compounded quarterly. The amount of interest payable for any period will
be computed on the basis of twelve 30-day months and a 360-day year. The amount
of interest payable for any partial period shall be computed on the basis of the
actual number of elapsed days based on a 360-day year of twelve 30-day months.
In the event that any date on which interest is payable on this Series A
Security is not a Business Day, then a payment of the 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 the date the payment was originally payable.
A "Business Day" shall mean any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in the City of New York or Los Angeles,
California, are authorized or obligated by law or executive order to remain
closed or (iii) a day on which the Corporate Trust Office of the Trustee is
closed for business. The interest installment so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Subordinated Indenture, be paid to the Person in whose name this Series A
Security (or one or more Predecessor Securities is registered at the close of
business on the Regular Record Date for such interest installment. Any such
interest installment not so punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Series A 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 Series A Securities 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 Series A Securities may be listed or traded, and upon such
notice as may be required by such exchange, all as more fully provided in said
Subordinated Indenture.
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So long as no Event of Default shall have occurred and be continuing, the
Corporation shall have the right, at any time during the term of the Series A
Securities, from time to time, to defer the payment of interest on the Series A
Securities for up to 20 consecutive quarters with respect to each deferred
period (each, an "Extension Period"), during which Extension Periods the
Corporation shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall (i) end on a date other than an
Interest Payment Date or (ii) extend beyond the Stated Maturity of the principal
of the Series A Securities (as shortened or extended pursuant to the
Subordinated Indenture). At the end of any such Extension Period the Corporation
shall pay all interest then accrued and unpaid on the Series A Securities
(together with Additional Interest thereon, if any, at the annual rate of
7.875%, compounded quarterly, to the extent permitted by applicable law). During
any Extension Period, the Corporation shall not (a) declare or pay any dividends
or distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of its capital stock, (b) make any payment of principal of
or interest or premium, if any, on or repay, repurchase or redeem, any debt
security issued by it that ranks pari passu with or junior in interest to the
Series A Securities or (c) make any guarantee payments with respect to any
guaranty by the Corporation that by its terms rank pari passu with or junior in
interest to the Series A Securities; provided, however, that the Corporation may
(1) declare dividends in, or make distributions in, shares of its common stock,
(2) purchase its common stock if related to the issuance of its common stock
under any of the Corporation's benefit plans for its directors, officers or
employees, or (3) declare dividends in connection with any stockholder's rights
plan, issue its stock under such plan or repurchase any rights distributed
pursuant to such plan. Prior to the termination of any Extension Period, the
Corporation may further extend the interest payment period. Notwithstanding any
provision of the Subordinated Indenture to the contrary, no Extension Period (as
so extended) shall exceed 20 consecutive quarters or extend beyond the Stated
Maturity of the Series A Securities. Upon termination of any such Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Corporation may elect to begin a new Extension
Period, subject to the requirements of the Subordinated Indenture. No interest
shall be due and payable during an Extension Period, except at the end thereof.
The Corporation shall give the Property Trustee, the Regular Trustees and the
Trustee notice of its election to begin any such Extension Period at least one
Business Day prior to the earlier of (y) the next Distribution Date relating to
the Preferred Securities or (z) the date the Regular Trustees are required to
give notice of the record date or the Distribution Date relating to the
Preferred Securities to the New York Stock Exchange or other applicable
self-regulatory organization or to holders of such Preferred Securities. The
Trustee shall promptly give notice of the Corporation's election to begin any
such Extension Period to the Holders of the Outstanding Series A Securities.
Payment of the principal of (and premium, if any) and any such interest on
this Series A Security will be made at the office or agency of the Corporation
maintained for that purpose in the City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
the Corporation payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or by wire transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Trustee
at least sixteen (16) days prior to the date for payment by the Person entitled
thereto.
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Reference is hereby made to the further provisions of this Series A
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 Series A Security shall not be entitled to any benefit under the
Subordinated Indenture or be valid or obligatory for any purpose.
3
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IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated at Date of Authentication: EDISON INTERNATIONAL
By:
---------------------------
Name: Mary C. Simpson
Title: Assistant Treasurer
Attest:
- --------------------------------------
This is one of the Series A Securities referred to in the within mentioned
Subordinated Indenture.
Dated: July 26, 1999
THE CHASE MANHATTAN BANK,
as Trustee
By:
-------------------------------------
Authorized Signatory
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This Series A Security is one of a duly authorized issue of securities of
the Corporation, issued and to be issued in one or more series under the
Subordinated Indenture, dated as of July 26, 1999, as amended (herein called the
"Subordinated Indenture"), among the Corporation and The Chase Manhattan Bank,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Subordinated Indenture), to which Subordinated Indenture
(including all indentures supplemental thereto) reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Corporation and the Holders of the Series A
Securities, and of the terms upon which the Series A Securities are, and are to
be, authenticated and delivered. This Series A Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$592,783,600.
All terms used in this Series A Security that are defined in the
Subordinated Indenture or in the Amended and Restated Trust Agreement, dated as
of July 26, 1999 (the "Trust Agreement"), for EIX Trust I among the Corporation,
as Depositor, and the Property Trustee and the other trustees named therein,
shall have the meanings assigned to them in the Subordinated Indenture or the
Trust Agreement, as the case may be.
The Corporation may at any time, at its option, on or after July 26, 2004,
and subject to the terms and conditions of Article XI of the Subordinated
Indenture, redeem this Series A Security in whole at any time or in part from
time to time, without premium or penalty, at a redemption price equal to 100% of
the principal amount hereof plus accrued and unpaid interest, including
Additional Interest, if any, to the Redemption Date.
Upon the occurrence and continuance of a Special Event in respect of EIX
Trust I, the Corporation may, at its option, at any time within 90 days of the
occurrence of such Special Event, redeem this Series A Security, in whole but
not in part, subject to the provisions of the Subordinated Indenture, at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest, including Additional Interest, if any, to the Redemption Date.
The Subordinated Indenture contains provisions for satisfaction, discharge
and defeasance at any time of the entire indebtedness of this Series A Security
upon compliance by the Corporation with certain conditions set forth in the
Subordinated Indenture.
If an Event of Default with respect to the Series A Securities shall occur
and be continuing, the principal of the Series A Securities may be declared due
and payable in the manner and with the effect provided in the Subordinated
Indenture.
The indebtedness evidenced by this Series A Security is, to the extent
provided in the Subordinated Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of the
Corporation, and this Series A Security is issued subject to the provisions of
the Subordinated Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Subordinated Indenture
by each holder of Senior Indebtedness of the Corporation, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
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The Subordinated Indenture permits, with certain exceptions as therein
provided, the Corporation and the Trustee at any time to enter into a
supplemental indenture or indentures for the purpose of modifying in any manner
the rights and obligations of the Corporation and of the Holders of the Series A
Securities, with the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series to be affected by such supplemental
indenture. The Subordinated Indenture also contains provisions permitting
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Corporation with certain provisions of
the Subordinated Indenture and certain past defaults under the Subordinated
Indenture and their consequences. Any such consent or waiver by the Holder of
this Series A Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Series A Security and of any Series A Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Series A Security.
As provided in and subject to the provisions of the Subordinated Indenture,
if an Event of Default with respect to Series A Securities at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding Series A
Securities may declare the principal amount of all the Series A Securities to be
due and payable immediately, by a notice in writing to the Corporation (and to
the Trustee if given by Holders), provided that, if upon an Event of Default,
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Series A Securities fail to declare the principal of all the Series
A 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 Corporation and the Trustee; and
upon any such declaration the principal amount of and the accrued interest
(including any Additional Interest) on all the Series A Securities shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Series A Securities shall remain
subordinated to the extent provided in the Subordinated Indenture.
No reference herein to the Subordinated Indenture and no provision of this
Series A Security or of the Subordinated Indenture shall alter or impair the
obligation of the Corporation, which is absolute and unconditional, to pay the
principal and interest on this Series A Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein set forth, the transfer of this Series A Security is
registrable in the Securities Register, upon surrender of this Series A 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 Series A
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 Series A Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Series A Securities are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. As provided
in the Subordinated Indenture and subject to certain limitations therein set
forth, the Series A Securities are
6
<PAGE>
exchangeable for a like aggregate principal amount of Series A Securities
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 Series 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 this Series A Security is registered
as the owner hereof for all purposes, whether or not this Series A Security be
overdue, and neither the Corporation, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Corporation and, by its acceptance of this Series A Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Series A Security agree that for United States
federal, state and local tax purposes it is intended that this Series A Security
constitute indebtedness.
The Series A Securities shall be governed by and construed in accordance
with the laws of the State of California, except that the rights, duties,
indemnities and immunities of the Trustee shall be governed by the laws of the
State of New York.
THIS PREFERRED SECURITIES CERTIFICATE IS A BOOK-ENTRY PREFERRED SECURITIES
CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY")
OR A NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITIES CERTIFICATE IS
EXCHANGEABLE FOR PREFERRED SECURITIES CERTIFICATES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK) TO EIX TRUST I OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED
SECURITIES CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P-1 8,000,000
CUSIP NO. 268540 20 0
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
EIX TRUST I
7.875% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
EIX Trust I, a statutory business trust created under the laws of the State
of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the "Holder") is
the registered owner of the number set forth above of preferred securities of
the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the EIX Trust I 7.875% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation amount $25 per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of July 26, 1999, as the same may be
amended from time to time (the "Trust Agreement") including the designation of
the terms of Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement dated as of July 26, 1999 between
Edison International, a California corporation, and The Chase Manhattan Bank, as
guarantee trustee (as the same may be amended from time to time, the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
<PAGE>
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust has executed
this certificate this 26th day of July, 1999.
EIX TRUST I
By:
------------------------------
Name:
------------------------------
Title: Regular Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ------------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature:
______________________________________________________________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
<PAGE>
THIS PREFERRED SECURITIES CERTIFICATE IS A BOOK-ENTRY PREFERRED SECURITIES
CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY")
OR A NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITIES CERTIFICATE IS
EXCHANGEABLE FOR PREFERRED SECURITIES CERTIFICATES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK) TO EIX TRUST I OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED
SECURITIES CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P-2 8,000,000
CUSIP NO. 268540 20 0
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
EIX TRUST I
7.875% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
EIX Trust I, a statutory business trust created under the laws of the State
of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the "Holder") is
the registered owner of the number set forth above of preferred securities of
the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the EIX Trust I 7.875% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation amount $25 per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of July 26, 1999, as the same may be
amended from time to time (the "Trust Agreement") including the designation of
the terms of Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement dated as of July 26, 1999 between
Edison International, a California corporation, and The Chase Manhattan Bank, as
guarantee trustee (as the same may be amended from time to time, the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
<PAGE>
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust has executed
this certificate this 26th day of July, 1999.
EIX TRUST I
By:
-----------------------------
Name:
-----------------------------
Title: Regular Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- -------------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature:
______________________________________________________________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
<PAGE>
THIS PREFERRED SECURITIES CERTIFICATE IS A BOOK-ENTRY PREFERRED SECURITIES
CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY")
OR A NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITIES CERTIFICATE IS
EXCHANGEABLE FOR PREFERRED SECURITIES CERTIFICATES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, EXCEPT IN
LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK) TO EIX TRUST I OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED
SECURITIES CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CERTIFICATE NUMBER NUMBER OF PREFERRED SECURITIES
P-3 4,000,000
CUSIP NO. 268540 20 0
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
EIX TRUST I
7.875% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES A
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
EIX Trust I, a statutory business trust created under the laws of the State
of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the "Holder") is
the registered owner of the number set forth above of preferred securities of
the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the EIX Trust I 7.875% Cumulative Quarterly Income
Preferred Securities, Series A (liquidation amount $25 per Preferred Security)
(the "Preferred Securities"). The Preferred Securities are transferable on the
books and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities represented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Amended and Restated
Trust Agreement of the Trust dated as of July 26, 1999, as the same may be
amended from time to time (the "Trust Agreement") including the designation of
the terms of Preferred Securities as set forth therein. The Holder is entitled
to the benefits of the Guarantee Agreement dated as of July 26, 1999 between
Edison International, a California corporation, and The Chase Manhattan Bank, as
guarantee trustee (as the same may be amended from time to time, the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
<PAGE>
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust has executed
this certificate this 26th day of July, 1999.
EIX TRUST I
By:
--------------------------
Name:
--------------------------
Title: Regular Trustee
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ------------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: ________________
Signature:
______________________________________________________________________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
SEC Rule 17Ad-15.
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT IN CERTAIN LIMITED CIRCUMSTANCES
SET FORTH IN THE TRUST AGREEMENT
(AS DEFINED BELOW).
CERTIFICATE NUMBER NUMBER OF COMMON SECURITIES
C-1 618,560
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
EIX TRUST I
7.875% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
EIX Trust I, a statutory business trust created under the laws of the State
of Delaware (the "Trust"), hereby certifies that EDISON INTERNATIONAL (the
"Holder") is the registered owner of the number set forth above of common
securities of the Trust representing beneficial interests of the Trust and
designated the 7.875% Common Securities (liquidation amount $25 per Common
Security) (the "Common Securities"). Except as provided in Section 5.10 of the
Trust Agreement (as defined below), the Common Securities are not transferable
and any attempted transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of July 26, 1999, as the same may be amended from time to time
(the "Trust Agreement"), including the designation of the terms of Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust has executed
this certificate this 26th day of July, 1999.
EIX TRUST I
By:
----------------------------
Name: Mary C. Simpson
Title: Regular Trustee
NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (this "Agreement"), dated as of
July 26, 1999, is made by and between Edison International, a California
corporation (the "Company"), and EIX Trust I, a Delaware business trust (the
"Trust").
RECITALS
A. Capitalized terms used herein without definition shall have
the meanings ascribed to them in that certain Subordinated Indenture, dated as
of July 26, 1999, as amended by that certain Supplemental Indenture No. 1, dated
as of July 26, 1999 (as so amended, the "Subordinated Indenture"), each between
the Company and The Chase Manhattan Bank, a New York banking corporation, as
trustee (the "Trustee"), or that certain Amended and Restated Trust Agreement
(the "Trust Agreement"), dated as of July 26, 1999 among the Company, as
Depositor, The Chase Manhattan Bank, a New York banking corporation, as property
trustee (the "Property Trustee"), Chase Manhattan Bank Delaware, a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee"), the regular
trustees named therein (the "Regular Trustees) (the Property Trustee, the
Delaware Trustee, and the Regular Trustees referred to collectively as the
"Securities Trustees") and the several Holders, as defined in the Trust
Agreement, as applicable, which, in each case, is incorporated herein by this
reference.
B. On the Closing Date, and on the terms set forth herein, the
Company has agreed to sell to the Trust and the Trust has agreed to purchase
from the Company up to $592,783,600 in aggregate principal amount of 7.875%
Subordinated Deferrable Interest Notes, Series A due July 26, 2029 (the "Series
A QUIDS"), issued pursuant to the Subordinated Indenture, as set forth herein.
AGREEMENT
NOW, THEREFORE, on the terms and conditions set forth below
and for good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Company and the Trust agree as follows:
1. SALE OF NOTES
a. Authorization of Notes.
On or before the Closing Date, the Company shall have caused
to be authorized pursuant to the Subordinated Indenture the issuance of the
Series A QUIDS in the aggregate principal amount of $515,464,000. On or before
the Second Closing Date, the Company shall have caused to be authorized pursuant
to the Subordinated Indenture the issuance of the Series A QUIDS in the
additional aggregate principal amount (the "Over-allotment Principal Amount")
equal to the aggregate Liquidation Amount of the Preferred Securities issued by
the Trust on the Second Closing Date pursuant to the exercise of the
Over-allotment Option by the underwriters parties to the Underwriting Agreement,
but in no event to exceed an aggregate principal amount equal to $77,319,600.
b. Issuance and Purchase.
On the basis of the covenants contained in the Subordinated
Indenture, and subject to the terms and conditions herein and therein specified,
the Company agrees to issue and sell to the Trust, and the Trust agrees to
purchase from the Company, (i) on the Closing Date, the Series A QUIDS in the
principal amount of $515,464,000 and (ii) on the Second Closing Date, the Series
A QUIDS in the principal amount equal to the Over-allotment Principal Amount. As
compensation for the Series A QUIDS purchased on the Closing Date, the Company
shall receive from the Trust (i) 618,560 Common Securities of the Trust, plus
(ii) the net proceeds to the Trust from the sale of the Preferred Securities
pursuant to the Underwriting Agreement on the Closing Date. As compensation for
the Series A QUIDS purchased on the Second Closing Date, the Company shall
receive from the Trust the net proceeds to the Trust from the sale of the
Preferred Securities pursuant to the Underwriting Agreement on the Second
Closing Date.
c. Delivery.
Delivery of, and payment of the purchase price for the Series
A QUIDS shall be made by federal wire transfer of immediately available funds as
early as possible after 6:00 a.m. (P.S.T.) on the Closing Date or the Second
Closing Date, as applicable, to an account designated by the Company not later
than the Business Day prior to the Closing Date or the Second Closing Date, as
applicable.
2. CONDITIONS PRECEDENT
The obligations of the Trust to purchase the Series A QUIDS
under this Agreement are subject to the satisfaction of each of the following
conditions:
a. The Regular Trustees, on behalf of the Trust, shall have received a copy of
the executed Subordinated Indenture, which shall have been entered into by the
Company and the Trustee.
b. The Company shall not have failed at or prior to the Closing Date or the
Second Closing Date, as applicable, to perform or comply in any material respect
with any of the agreements herein contained and required to be performed or
complied with by the Company at or prior to the Closing Date or the Second
Closing Date, as applicable.
c. On or before the Closing Date or the Second Closing Date, as applicable, the
Trust shall have issued the Preferred Securities pursuant to the Trust Agreement
and the Underwriting Agreement in the Liquidation Amount equal to the principal
amount of Series A QUIDS to be sold hereunder on such date.
3. MISCELLANEOUS
a. Effective Date of Agreement
This Agreement shall become effective upon the execution and
delivery of this Agreement by the parties hereto. This Agreement shall terminate
automatically upon the termination of the Underwriting Agreement prior to the
Closing Date.
b. Notice
Unless otherwise specifically provided herein, all notices,
directions, consents and waivers required under the terms and provisions of this
Agreement shall be in English and in writing, and any such notice, direction,
consent or waiver may be given by United States mail, courier service, telegram,
telex, telemessage, telecopy, telefax, cable or facsimile (confirmed by
telephone or in writing in the case of notice by telegram, telex, telemessage,
telecopy, telefax, cable or facsimile) or any other customary means of
communication, and any such notice, direction, consent or waiver shall be
effective when delivered, or if mailed, three days after deposit in the United
States mail with proper postage for ordinary mail prepaid,
if to the Company, to:
Edison International
2244 Walnut Grove Avenue
Rosemead, CA 91770
Facsimile: (626) 302-1851
Telephone: (626) 302-6601
Attention: Corporate Secretary
if to the Trust to:
EIX Trust I
c/o Edison International
2244 Walnut Grove Avenue
(P.O. Box 999)
Rosemead, CA 91770
Fascimile: (626) 302-1930
Telephone: (626) 302-2222
if to the Property Trustee, to:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Attention: Capital Markets Fiduciary Services
Fascimile: (212) 946-8177/8178
Telephone: (212) 270-2611
c. Parties
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company and the
Trust, and their respective successors and assigns. The term "successors and
assigns" shall not include a purchaser of any of the Series A QUIDS from the
Trust merely because of such purchase.
d. Governing Law
This Agreement shall be governed by, and shall be construed
and enforced in accordance with, the internal laws of the State of California,
without regard to conflicts of laws or principles.
e. Severability
If any provision of this Agreement shall be prohibited or
invalid under applicable law, the Agreement shall be ineffective only to such
extent, without invalidating the remainder of the Agreement.
f. Further Assurances
The Company agrees to execute and deliver such instruments and
take such actions as the Regular Trustees, on behalf of the Trust, may, from
time to time, reasonably request in order to effectuate the purpose and to carry
out the terms of this Agreement.
g. Headings
Section and subsection headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
h. Counterparts
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the Company and the Trust have caused this
Note Purchase Agreement to be duly executed by their respective officer or
trustee, thereunto duly authorized, all as of the day and year first above
written.
EDISON INTERNATIONAL, a California corporation
By:
------------------------------------
Name: Mary C. Simpson
Title: Assistant Treasurer
EIX Trust I, a Delaware business trust
By:
--------------------------------------
Name: Mary C. Simpson
Title: Regular Trustee
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of July 26, 1999 between Edison International, a
California corporation, and EIX Trust I, a Delaware business trust (the
"Trust"). Capitalized terms used but not defined herein have the meanings
ascribed to such terms in the Trust Agreement (as defined below).
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Notes from Edison International and to issue and
sell 7.875% Cumulative Quarterly Income Preferred Securities, Series A (the
"Preferred Securities") with such powers, preferences and special rights and
restrictions as are set forth in the Amended and Restated Trust Agreement of the
Trust dated as of July 26, 1999, as the same may be amended from time to time
(the "Trust Agreement");
WHEREAS, Edison International will directly or indirectly own
all of the Common Securities of the Trust and will issue the Notes;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Edison International hereby agrees shall
benefit Edison International and which purchase Edison International
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, Edison International and the Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by Edison International
Subject to the terms and conditions hereof, Edison International hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and
1
<PAGE>
(b) the date on which there are no Beneficiaries remaining; provided,
however, that this Agreement shall continue to be effective or shall be
reinstated, as the case may be, if at any time any holder of Preferred
Securities or any Beneficiary must restore payment of any sums paid under the
Preferred Securities, under any Obligation, under the Guarantee Agreement dated
as of the date hereof between Edison International and The Chase Manhattan Bank,
as guarantee trustee, or under this Agreement for any reason whatsoever. This
Agreement is continuing, irrevocable, unconditional and absolute.
SECTION 1.3. Waiver of Notice.
Edison International hereby waives notice of acceptance of this Agreement
and of any Obligation to which it applies or may apply, and Edison International
hereby waives presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of Edison International
under this 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 extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) 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 Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or
obtain the consent of, Edison International with respect to the happening of any
of the foregoing.
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Edison
International and Edison International waives any right or remedy to require
that any action be brought against the Trust or any other person or entity
before proceeding against Edison International.
SECTION 1.6. Subrogation.
Edison International shall be subrogated to all (if any) rights of any
Beneficiary against the Trust, in respect of any amounts paid to the
Beneficiaries by Edison International
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under this Agreement; provided, however, that Edison International 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 Trust by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Edison
International and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail) or by registered or
certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of a confirmation, if sent by facsimile):
EIX Trust I
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-302-1930
Attention: Corporate Governance
Edison International
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-302-2662
Attention: Corporate Secretary
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
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THIS AGREEMENT is executed as of the day and year first above written.
EDISON INTERNATIONAL
By:
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Name:
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Title: Regular Trustee
EIX TRUST I
By:
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Name:
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Title: Regular Trustee
