<PAGE>
As filed with the Securities and Exchange Commission on July 2, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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<TABLE>
<CAPTION>
Edison International California 95-4137452
<S> <C> <C>
EIX Trust I Delaware 95-7077769
EIX Trust II Delaware 95-7077770
EIX Trust III Delaware 95-7077771
(State or Other Jurisdiction (I.R.S. Employer
(Exact name of Registrant of Identification Number)
as Specified in Its Incorporation or
Charter) Organization)
</TABLE>
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2244 Walnut Grove Avenue
(P.O. Box 800)
Rosemead, California 91770
(626) 302-2222
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
each Registrant's Principal Executive Offices)
--------------
Kenneth S. Stewart, Esq.
Assistant General Counsel and Assistant Secretary
2244 Walnut Grove Avenue
Rosemead, California 91770
(626) 302-6601
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
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Approximate Date of Commencement of Proposed Sale to the Public: From time
to time after the registration statement becomes effective, as determined by
market and other conditions.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
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If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
--------------
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
--------------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
--------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
Title of each class of Proposed maximum Amount of
securities to be Amount to be aggregate offering Registration
registered(1) registered(1)(2)(3) price(3)(4) Fee
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<S> <C> <C> <C>
Debt Securities, Common Stock, without par
value, and Preferred Stock, without par
value, of Edison International..............
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Rights to Purchase Series A Junior
Participating Cumulative Preferred Stock,
without par value, of Edison
International(5)............................
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Preferred Securities of EIX Trust I, EIX
Trust II and EIX Trust III(6)...............
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Guarantees of Preferred Securities of the
Trusts by Edison International(6)...........
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Total..................................... $2,500,000,000 $2,500,000,000 $695,000
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</TABLE>
(1) An indeterminate principal amount or number of debt securities, common
stock and/or preferred stock and guarantees of Edison International and an
indeterminate number of preferred securities of the Trusts as may from
time to time be issued at indeterminate prices, with an aggregate offering
price not to exceed $2,500,000,000. Debt securities may be issued and sold
to the Trusts, in which event the debt securities may later be distributed
to the holders of preferred securities.
(2) In United States dollars or the equivalent thereof in any other currency,
composite currency or currency unit as shall result in an aggregate
initial offering price for all securities of $2,500,000,000.
(3) This amount represents the principal amount of any debt securities issued
at their principal amount, the issue price of any debt securities issued
at an original issue discount, the issue price of any preferred stock and
preferred securities and the amount computed pursuant to Rule 457(c) for
any common stock.
(4) Estimated solely for the purpose of calculating the registration fee,
which is calculated in accordance with Rule 457(o) of the rules and
regulations under the Securities Act of 1933. Rule 457(o) permits the
registration fee to be calculated on the basis of the maximum offering
price of all of the securities listed and, therefore, the table does not
specify by each class information as to the amount to be registered, the
proposed maximum offering price per unit or the proposed maximum aggregate
offering price.
(5) The Rights are initially carried and traded with the common stock. The
value attributable to the Rights, if any, is reflected in the value of the
common stock.
(6) Includes the rights of holders of the preferred securities under the
guarantees of preferred securities and back-up undertakings, consisting of
obligations by Edison International, as set forth in the trust agreement,
the applicable indenture and any supplemental indenture thereto, in each
case as further described in the Registration Statement. No separate
consideration will be received for any guarantees or any back-up
undertakings.
--------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
--------------
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<PAGE>
EXPLANATORY NOTE
This Registration Statement includes a prospectus supplement that relates to
the proposed offering of QUIPS as described therein currently planned to
commence as soon as practicable after the effective date of the Registration
Statement.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion. Dated July 2, 1999.
Prospectus Supplement to Prospectus Dated , 1999.
Preferred Securities
EIX Trust I
% Cumulative Quarterly Income Preferred Securities,
Series A (QUIPSSM)*
(Liquidation Amount $25 per QUIPS)
Fully and unconditionally guaranteed, as described herein, by
Edison International
-----------
A brief description of the % Cumulative Quarterly Income Preferred
Securities, Series A (QUIPSSM) can be found under "Summary Information--Q&A" in
this prospectus supplement.
Application has been made to list the QUIPS on the New York Stock Exchange.
If the QUIPS are approved for listing, Edison International expects trading of
the QUIPS to begin within 30 days after they are first issued.
-----------
See "Risk Factors" beginning on page S-6 to read about specific risks you
should consider before buying the QUIPS.
-----------
Neither the Securities and Exchange Commission nor any other regulatory body
has approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
-----------
<TABLE>
<CAPTION>
Per QUIPS Total
--------- -----
<S> <C> <C>
Initial public offering price(1)............................... $ $
Underwriting commissions to be paid by Edison International.... $ $
Proceeds to EIX Trust I........................................ $ $
</TABLE>
- ------
(1) Plus accumulated distributions, if any, from , 1999.
The Underwriters may, subject to the terms of the underwriting agreement,
purchase up to an additional QUIPS from EIX Trust I at the initial public
offering price per QUIPS (plus accumulated distributions, if any, from ,
1999), less the underwriting commissions.
-----------
The Underwriters expect to deliver the QUIPS in book-entry form only through
the facilities of The Depository Trust Company against payment in New York, New
York on , 1999.
*"QUIPS" AND "QUIDS" are registered service marks of Goldman, Sachs & Co.
Goldman, Sachs & Co.
-----------
Prospectus Supplement dated , 1999.
<PAGE>
SUMMARY INFORMATION--Q&A
The following information supplements, and should be read together with,
the information contained in other parts of this prospectus supplement and in
the accompanying prospectus. This summary highlights selected information from
this prospectus supplement and the accompanying prospectus to help you
understand the % Cumulative Quarterly Income Preferred Securities, Series A
(QUIPSSM) (the "Series A QUIPS"). You should carefully read this prospectus
supplement and the accompanying prospectus to understand fully the terms of the
Series A QUIPS as well as the tax and other considerations that are important
to you in making a decision about whether to invest in the Series A QUIPS. You
should pay special attention to the "Risk Factors" section beginning on Page S-
6 of this prospectus supplement to determine whether an investment in the
Series A QUIPS is appropriate for you.
What are the Series A QUIPS?
Each Series A QUIPS represents an undivided beneficial interest in the
assets of EIX Trust I (the "Trust"). Each Series A QUIPS will entitle the
holder to receive quarterly cash distributions as described in this prospectus
supplement. The Trust is offering Series A QUIPS at a price of $ for
each Series A QUIPS.
Who is the Trust?
The Trust is a Delaware business trust. Its principal offices are located
at 2244 Walnut Grove Avenue, Rosemead, California 91770 and the telephone
number is (626) 302-1930.
The Trust will sell its Series A QUIPS to the public and its Series A
common securities (the "Series A Common Securities") to Edison International.
The Trust will use the proceeds from these sales to buy the % Subordinated
Deferrable Interest Notes, Series A due , (QUIDSSM) (the "Series A
QUIDS") from Edison International with the same financial terms as the Series A
QUIPS. Edison International will guarantee payments made on the Series A QUIPS
as described below.
The Chase Manhattan Bank will act as property trustee (the "Property
Trustee") of the Trust. Three officers of Edison International also will act as
trustees (the "Regular Trustees") of the Trust. Chase Manhattan Bank Delaware
will be an additional trustee (the "Delaware Trustee") of the Trust. The Chase
Manhattan Bank also will act as trustee (the "Subordinated Indenture Trustee")
under the Subordinated Indenture, as supplemented (the "Subordinated
Indenture"), pursuant to which the Series A QUIDS will be issued and will act
as trustee (the "Guarantee Trustee") under a Guarantee Agreement with Edison
International in respect of the Series A QUIPS (the "Series A QUIPS
Guarantee"). The Property Trustee, Delaware Trustee and Regular Trustees are
sometimes referred to as the "Securities Trustees."
Who is Edison International?
Edison International was incorporated on April 20, 1987, under the laws of
the State of California for the purpose of becoming the parent holding company
of Southern California Edison Company, a California public utility corporation.
As of December 31, 1998, Edison International owned all of the issued and
outstanding common stock of Southern California Edison Company and of the
following subsidiaries engaged in nonutility businesses: Edison Mission Energy,
Edison Capital, Mission Land Company and Edison Enterprises. The principal
executive offices of Edison
S-2
<PAGE>
International are located at 2244 Walnut Grove Avenue, Rosemead, California
91770, and its telephone number is (626) 302-2222.
When will you receive quarterly distributions?
If you purchase the Series A QUIPS, you are entitled to receive cumulative
cash distributions at an annual rate of % of the liquidation amount of $25 per
Series A QUIPS. Distributions will accumulate from the date the Trust first
issues the Series A QUIPS and will be paid quarterly in arrears on August 31,
November 30, February 28 and May 31 of each year, beginning August 31, 1999.
When can payment of your distributions be deferred?
So long as no event of default under the Subordinated Indenture
("Subordinated Indenture Event of Default") has occurred and is continuing,
Edison International can, on one or more occasions, defer interest payments on
the Series A QUIDS for up to 20 consecutive quarterly periods. A deferral of
interest payments cannot extend, however, beyond the maturity date of the
Series A QUIDS, which is , .
If Edison International defers interest payments on the Series A QUIDS, the
Trust will also defer distributions on the Series A QUIPS. During this deferral
period, distributions will continue to accumulate on the Series A QUIPS at an
annual rate of % of the liquidation amount of $25 per Series A QUIPS. Also,
the deferred distributions will themselves accumulate additional distributions,
compounded quarterly, at an annual rate of %, to the extent permitted by law.
If Edison International makes all deferred interest payments on the Series A
QUIDS, with accrued interest, it can again defer interest payments on the
Series A QUIDS.
During any period in which Edison International defers interest payments on
the Series A QUIDS, with limited exceptions, Edison International will not be
permitted to:
. pay a dividend or make any distributions on its capital stock or redeem,
purchase, acquire or make a liquidation payment on any of its capital
stock; or
. make an interest, principal or premium payment on, or repurchase or
redeem, any of its debt securities that rank equally with or junior to
the Series A QUIDS, or make any guarantee payments with respect to any
guarantee by it of debt securities of any of its subsidiaries if the
guarantee is equal to or junior in right of payment to the Series A
QUIDS.
If Edison International defers payments of interest on the Series A QUIDS,
the Series A QUIDS will, from the time of deferral, be treated as having been
reissued with original issue discount ("OID") for United States federal income
tax purposes. This means that you will be required to accrue interest income
and include the amounts of this income in your gross income for United States
federal income tax purposes even though you will not have received any cash
distributions relating to this interest income, and even though you may use the
cash method of accounting. See "Material United States Federal Income Tax
Considerations--Interest Income and Original Issue Discount" in this prospectus
supplement.
When can the Trust redeem the Series A QUIPS?
The Trust must redeem all of the outstanding Series A QUIPS and Series A
Common Securities when the Series A QUIDS are paid at maturity on , .
In addition, if Edison International redeems any Series A QUIDS before their
maturity, the Trust will use the cash it receives from the redemption to
redeem, on a pro rata basis, Series A QUIPS and Series A Common
S-3
<PAGE>
Securities (collectively, the "Series A Trust Securities") having a combined
liquidation amount equal to the principal amount of the Series A QUIDS
redeemed.
Edison International can redeem some or all of the Series A QUIDS before
their maturity at 100% of their principal amount on one or more occasions any
time on or after , 2004. Edison International also has the option to redeem
the Series A QUIDS, in whole, but not in part, at any time if specific changes
in tax or investment company law occur and other conditions are satisfied, as
more fully described under "Description of the Series A QUIDS--Optional
Redemption." In any case, Edison International will pay accrued interest to the
date of redemption.
What is Edison International's guarantee of the Series A QUIPS?
Edison International will guarantee the Series A QUIPS based on:
. the Series A QUIPS Guarantee, which guarantees the Trust's obligation to
pay distributions on the Series A QUIPS; and
. its obligations under the Amended and Restated Trust Agreement of the
Trust (the "Trust Agreement") and the Agreement as to Expenses and
Liabilities between Edison International and the Trust (the "Expense
Agreement").
The payment of distributions on the Series A QUIPS is guaranteed by Edison
International under the Series A QUIPS Guarantee, but only to the extent the
Trust has funds legally and immediately available to make distributions. See
"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" in the
accompanying prospectus.
Edison International's obligations under the Series A QUIPS Guarantee are:
. subordinate and junior in right of payment to all of its other
liabilities, except those that rank equally or are subordinate by their
terms; and
. equal in rank with any other preferred securities guarantee similar to
the Series A QUIPS Guarantee issued by Edison International on behalf of
the holders of preferred securities issued by any other trust established
by Edison International or its affiliates.
When could the Series A QUIDS be distributed to you?
Edison International has the right to terminate the Trust at any time. If
Edison International terminates the Trust, the Trust will liquidate by
distributing the Series A QUIDS to holders of the Series A Trust Securities on
a pro rata basis. If the Series A QUIDS are distributed, Edison International
will use its best efforts to list the Series A QUIDS on the New York Stock
Exchange or any other exchange on which the Series A QUIPS are then listed in
place of the Series A QUIPS. For a discussion of Edison International's ability
to distribute the Series A QUIDS, see "Description of the Series A QUIPS--
Exchange of Series A QUIPS for Series A QUIDS" in this prospectus supplement
and "Description of Preferred Securities--Liquidation Distribution upon
Dissolution" in the accompanying prospectus.
Will the Series A QUIPS be listed on a stock exchange?
Application has been made to list the Series A QUIPS on the New York Stock
Exchange. If approved, trading of the Series A QUIPS is expected to begin
within 30 days after they are first issued.
S-4
<PAGE>
Will holders of the Series A QUIPS have any voting rights?
Generally, the holders of the Series A QUIPS will not have any voting
rights. See "Description of Preferred Securities--Voting Rights; Amendment of
Trust Agreement" in the accompanying prospectus.
In what form will the Series A QUIPS be issued?
The Series A QUIPS will be represented by one or more global securities
that will be deposited with and registered in the name of The Depositary Trust
Company or its nominee. This means that you will not receive a certificate for
your Series A QUIPS and that your broker will maintain your position in the
Series A QUIPS. Edison International expects that the Series A QUIPS will be
ready for delivery through The Depository Trust Company on or about , 1999.
S-5
<PAGE>
RISK FACTORS
Your investment in the Series A QUIPS will involve risks. You should
carefully consider the following discussion of risks, and the other information
in this prospectus supplement and the accompanying prospectus (including the
documents incorporated by reference in the prospectus), before deciding whether
an investment in the QUIPS is suitable for you.
Edison International's Obligations under the Series A QUIDS and the Series A
QUIPS Guarantee are Deeply Subordinated.
Edison International's obligations under the Series A QUIDS are unsecured
and will rank junior in priority of payment to all of Edison International's
other liabilities except those that rank equally or are subordinate by their
terms ("senior debt"). Edison International's obligations under the Series A
QUIPS Guarantee are unsecured and will rank in priority of payment as follows:
. subordinate and junior in right of payment to its senior debt; and
. equal in rank with any other preferred securities guarantee similar to
the Series A QUIPS Guarantee hereafter issued by Edison International on
behalf of the holders of preferred securities issued by any other trust
established by Edison International or its affiliates.
This means that Edison International cannot make any payments on the Series
A QUIDS or the Series A QUIPS Guarantee if it defaults on a payment of senior
debt and does not cure that default within the applicable grace period or if
any senior debt becomes immediately due because of a default and has not yet
been paid in full. In addition, in the event of the bankruptcy, liquidation or
dissolution of Edison International, its assets would be available to pay
obligations under the Series A QUIDS or the Series A QUIPS Guarantee only after
Edison International made all payments on its senior debt.
Because Edison International is a holding company, Edison International's
right to participate in any asset distribution of any of its subsidiaries, on
liquidation, reorganization or otherwise, will rank junior to the rights of all
creditors of that subsidiary (except to the extent that Edison International
may itself be a creditor of that subsidiary). The rights of holders of the
Series A QUIPS or Series A QUIDS to benefit from those distributions will also
be junior to those prior claims. Consequently, the Series A QUIDS (and,
therefore, the Series A QUIPS) will be effectively subordinated to all
liabilities of Edison International's subsidiaries. You should look only to the
assets of Edison International for payments on the Series A QUIDS (and the
Series A QUIPS).
At March 31, 1999, Edison International had total liabilities of
approximately $21.217 billion. Of this amount, approximately $6.770 billion
would be Senior Debt (as defined below) of Edison International or liabilities
of its subsidiaries that would effectively rank senior to the Series A QUIDS.
During the second quarter of 1999, Edison International's subsidiaries issued
the following additional Senior Debt:
. $300 million of 6.65% notes due 2029 in April 1999
. $120 million of 6.0% preferred securities in May 1999
. $600 million of 7.73% senior notes due 2009 in June 1999
None of the Series A QUIPS, the Series A QUIDS nor the Series A QUIPS
Guarantee limits the ability of Edison International to incur additional
indebtedness, including indebtedness that will rank senior in priority of
payment to the Series A QUIDS or the Series A QUIPS Guarantee. We expect that
Edison International and its subsidiaries may incur substantial additional
amounts of indebtedness in the future.
S-6
<PAGE>
The Series A QUIPS Guarantee Only Covers Payments if the Trust Has Cash
Available, but You May Sue Edison International Directly.
The ability of the Trust to pay scheduled distributions on the Series A
QUIPS, the redemption price of the Series A QUIPS and the liquidation amount of
each Series A QUIPS is solely dependent upon Edison International making the
related payments on the Series A QUIDS when due.
If Edison International defaults on its obligations to pay principal or
interest on the Series A QUIDS, the Trust will not have sufficient funds to pay
distributions on, or the redemption price or liquidation amount of, each Series
A QUIPS. In those circumstances, you will not be able to rely upon the Series A
QUIPS Guarantee for payment of these amounts.
Instead, you:
. may directly sue Edison International or seek other remedies to collect
your pro rata share of payments owed; or
. may rely on the Property Trustee to enforce the Trust's rights under the
Series A QUIDS.
Deferral of Distributions Would Have Tax Consequences for You and May Affect
the Trading Price of the Series A QUIPS.
So long as no Subordinated Indenture Event of Default has occurred and is
continuing, Edison International can, on one or more occasions, defer interest
payments on the Series A QUIDS for up to 20 consecutive quarterly periods. If
Edison International defers interest payments on the Series A QUIDS, the Trust
will defer distributions on the Series A QUIPS during any deferral period.
However, distributions would still accumulate and such deferred distributions
would themselves accumulate additional distributions, compounded quarterly, at
the annual rate of % per annum, to the extent permitted by law.
If Edison International defers payments of interest on the Series A QUIDS,
you will be required to include interest income in gross income for United
States federal income tax purposes in the form of OID, based on your pro rata
share of the deferred interest on the Series A QUIDS held by the Trust, before
you receive any cash relating to your interest, even if you use the cash method
of accounting. In addition, you will not receive this cash if you sell the
Series A QUIPS before the end of any deferral period or before the record date
relating to distributions which are paid.
Edison International has no current intention of deferring interest
payments on the Series A QUIDS. However, if Edison International exercises its
right in the future, the Series A QUIPS may trade at a price that does not
fully reflect the value of accrued but unpaid interest on the Series A QUIDS.
If you sell the Series A QUIPS during an interest deferral period, you may not
receive the same return on investment as someone else who continues to hold the
Series A QUIPS. In addition, the existence of Edison International's right to
defer payments of interest on the Series A QUIDS may mean that the market price
for the Series A QUIPS, which represent an undivided beneficial interest in the
Series A QUIDS, may be more volatile than other securities that do not have
these rights.
See "Material United States Federal Income Tax Considerations" in this
prospectus supplement for more information regarding the tax consequences of
purchasing, holding and selling the Series A QUIPS.
Series A QUIPS May Be Redeemed at Any Time if Adverse Changes in Tax or
Investment Company Law Occur.
If Edison International receives an opinion of counsel that adverse changes
in tax or investment company law have occurred or will occur, and other
conditions are satisfied, Edison International has
S-7
<PAGE>
the right to redeem the Series A QUIDS, in whole, but not in part, at any time
within 90 days of receipt of such opinion. Any such redemption will cause a
mandatory redemption of all Series A QUIPS and Series A Common Securities at a
redemption price equal to $25 per security plus any accrued and unpaid
distributions. See "Description of the Series A QUIDS--Optional Redemption" in
this prospectus supplement.
The Series A QUIDS, and Therefore the Series A QUIPS, May Be Redeemed at Par at
the Option of Edison International Five Years after Issuance.
At the option of Edison International, the Series A QUIDS may be redeemed,
in whole, at any time, or in part, from time to time, on or after , 2004, at
a redemption price equal to the principal amount to be redeemed plus any
accrued and unpaid interest to the date of redemption. See "Description of the
Series A QUIDS--Optional Redemption" in this prospectus supplement. You should
assume that Edison International will exercise its redemption option if Edison
International is able to refinance at a lower interest rate or it is otherwise
in the interest of Edison International to redeem the Series A QUIDS. If the
Series A QUIDS are redeemed, the Trust must redeem the Series A Trust
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of Series A QUIDS to be redeemed. See "Description of the
Series A QUIPS--Redemption" in this prospectus supplement.
Edison International May Change the Stated Maturity of the Series A QUIDS
As long as certain conditions are met, Edison International will have the
right to extend the stated maturity of the Series A QUIDS--and therefore the
mandatory redemption date of the Series A QUIPS--to . You should assume that
Edison International will exercise its option to extend the stated maturity if
Edison International is unable to refinance at a lower interest rate or it is
in the interest of Edison International to defer the stated maturity of the
Series A QUIDS. Consequently, you may have to wait years beyond the initial
stated maturity before the Trust redeems the Series A QUIPS. See "Description
of the Series A QUIDS--Stated Maturity" in this prospectus supplement.
There Can Be No Assurance as to the Market Prices for the Series A QUIPS or the
Series A QUIDS.
There can be no assurance as to the market prices for the Series A QUIPS or
the Series A QUIDS that may be distributed in exchange for Series A QUIPS upon
a termination of the Trust. Accordingly, the Series A QUIPS that you purchase,
whether pursuant to the offer made by this prospectus supplement or in the
secondary market, or the Series A QUIDS that you may receive upon a termination
of the Trust, may trade at a discount to the price that you paid to purchase
the Series A QUIPS offered by this prospectus supplement. As a result of Edison
International's right to defer interest payments on the Series A QUIDS, the
market price of the Series A QUIPS, which represent undivided beneficial
ownership interests in the Trust, substantially all the assets of which consist
of the Series A QUIDS, may be more volatile than the market prices of other
securities that are not subject to such optional deferrals.
Edison International May Terminate the Trust at Any Time.
Edison International has the right to terminate the Trust at any time. If
Edison International decides to exercise its right to terminate the Trust, the
Trust will liquidate by distributing the Series A QUIDS to holders of the
Series A QUIPS and the Series A Common Securities on a pro rata basis.
Under current United States federal income tax law and interpretations and
assuming, as we expect, that the Trust will not be classified as an association
taxable as a corporation, you would not be taxed if the Property Trustee
distributes the Series A QUIDS to you upon liquidation of the Trust.
S-8
<PAGE>
However, if a Tax Event (as defined below) were to occur and the Trust were
subject to taxation on income received or accrued on the Series A QUIDS, you
and the Trust could be taxed on that distribution.
Edison International has no current intention of causing the termination of
the Trust and the distribution of the Series A QUIDS. Edison International
anticipates that it would consider exercising this right in the event that
expenses associated with maintaining the Trust were substantially greater than
currently expected such as if specific changes in tax law or investment company
law occurred. See "Description of the Series A QUIPS--Exchange of Series A
QUIPS for Series A QUIDS" in this prospectus supplement and "Description of
Preferred Securities--Liquidation Distribution upon Dissolution" in the
accompanying prospectus. Edison International cannot predict the other
circumstances under which this right would be exercised.
Although Edison International intends to use its best efforts to list the
Series A QUIDS on the New York Stock Exchange or any other exchange on which
the Series A QUIPS are then listed if they are distributed, we cannot assure
you that the Series A QUIDS will be approved for listing or that a trading
market will exist for those securities.
You Have Limited Voting Rights.
You will have limited voting rights in respect of the Series A QUIPS. In
particular, subject to specific exceptions, only Edison International can
appoint or remove any of the Securities Trustees. See "Description of Preferred
Securities--Voting Rights; Amendment of Trust Agreement" in the accompanying
prospectus.
There Has Been No Prior Market for the Series A QUIPS.
Before this offering, there has been no market for the Series A QUIPS.
Although the Trust has applied to list the Series A QUIPS on the New York Stock
Exchange, a listing does not guarantee that a trading market for the Series A
QUIPS will develop or, if a trading market for the Series A QUIPS does develop,
the depth of that market and the ability of the holders to easily sell their
Series A QUIPS.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust will be treated as a subsidiary
of Edison International and, accordingly, the accounts of the Trust will be
included in the consolidated financial statements of Edison International. The
Series A QUIPS will be included in the "Preferred securities of subsidiaries
not subject to mandatory redemption" line on the consolidated balance sheet of
Edison International and also in the table of preferred securities in Note 4 of
the "Notes to Consolidated Financial Statements." For financial reporting
purposes, distributions payable on the Series A QUIPS will be included in the
"Dividends on subsidiary preferred securities" line on the consolidated
statement of income of Edison International.
USE OF PROCEEDS
The Trust will invest all of the proceeds from the sale of Series A QUIPS
in the Series A QUIDS. Assuming an initial offering price equal to the
liquidation amount of the Series A QUIPS, we estimate such proceeds to be
approximately $ (or $ , if the Underwriters' overallotment option is
exercised in full). We estimate that the expenses for this offering, excluding
underwriting discounts and commissions, will be approximately $ . Edison
International and/or its subsidiaries will use the net proceeds from the sale
of the Series A QUIDS for general corporate purposes, including investing in
nonutility business activities and reducing short-term debt incurred to provide
interim financing for such purposes.
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DESCRIPTION OF THE SERIES A QUIPS
This section describes the specific terms of the Series A QUIPS. This
description supplements, and should be read together with, the description of
the general terms and provisions of the Series A QUIPS set forth in the
accompanying prospectus under the caption "Description of Preferred
Securities." The following description does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, the description
in the accompanying prospectus and the Trust Agreement. We have filed a form of
the Trust Agreement as an exhibit to the Registration Statement of which the
accompanying prospectus is a part.
General
The Trust will issue the Series A QUIPS and the Series A Common Securities,
with a stated liquidation amount of $25 per security. The Series A QUIPS and
the Series A Common Securities will rank equally with one another. The Trust
will make payments on the Series A QUIPS pro rata with the Series A Common
Securities, except as described in "--Ranking" below.
The Trust will use the proceeds from the sale of the Series A Trust
Securities to purchase the Series A QUIDS from Edison International. The
Property Trustee will hold legal title to the Series A QUIDS in trust for the
benefit of the holders of the Series A Trust Securities. Edison International
will guarantee the payment of distributions and other amounts payable on the
Series A QUIPS, but only to the extent that the Trust has funds legally and
immediately available to make those payments. See "Description of Preferred
Securities Guarantees" in the accompanying prospectus.
The Trust Agreement will be qualified as an indenture under the Trust
Indenture Act. The Property Trustee will act as indenture trustee for the
Series A QUIPS, in order to comply with the provisions of the Trust Indenture
Act.
The Series A QUIPS will be represented by a global security that will be
deposited with and registered in the name of The Depository Trust Company
("DTC") or its nominee. Whenever we refer to a "holder" of Series A QUIPS in
this prospectus supplement, we mean the registered holder, which, for any
Series A QUIPS in book-entry form, will be DTC or its nominee. We discuss
various matters relevant to global securities under "Book-Entry Issuance" in
this prospectus supplement.
Distributions
Distributions will accumulate on the Series A QUIPS from the date they are
first issued at the annual rate of % of their liquidation amount. Unless
deferred as described below, distributions will be payable quarterly in arrears
on August 31, November 30, February 28 and May 31 of each year (each, a
"distribution date"), beginning August 31, 1999. Distributions not paid when
due will accumulate additional distributions, compounded quarterly, at the
annual rate of % on the amount of unpaid distributions, to the extent
permitted by law. Whenever we use the term "distributions" in this prospectus
supplement, we are including any of these distributions. The amount of
distributions payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months.
The assets of the Trust available for distributions to holders of Series A
QUIPS will be limited to the interest payments the Trust receives from Edison
International in respect of the Series A QUIDS. Consequently, if Edison
International defers or for any other reason fails to make interest payments on
the Series A QUIDS, the Trust will not have funds to pay distributions on the
Series A QUIPS.
As long as no Subordinated Indenture Event of Default has occurred and has
not been cured, Edison International will have the right to defer interest
payments on the Series A QUIDS at any time. Edison International may do so in
each case for a period not exceeding 20 consecutive
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quarters (each, an "extension period"). No extension period may extend beyond
the stated maturity of the Series A QUIDS. Before an extension period ends,
Edison International may extend it further if that extension period does not
exceed 20 consecutive quarters or extend beyond the stated maturity of the
Series A QUIDS. When an extension period ends and Edison International has paid
all accrued and unpaid interest on the Series A QUIDS, Edison International may
begin a new extension period, subject to the terms described above. There is no
limit on the number of extension periods that Edison International may begin.
If Edison International defers interest payments on the Series A QUIDS, the
Trust also will defer the payment of distributions on the Series A QUIPS.
During an extension period, you will still accumulate distributions at the rate
stated above, plus you will accumulate additional distributions on the deferred
distributions at the same rate, to the extent permitted by law. During an
extension period, you will be required to accrue interest income for United
States federal income tax purposes. See "Material United States Federal Income
Tax Considerations--Interest Income and Original Issue Discount" in this
prospectus supplement.
Edison International has no current intention to exercise its right to
defer interest payments on the Series A QUIDS. If Edison International elects
to begin an extension period, it will be subject to specified restrictions
relating to paying dividends on or repurchasing its common stock and making
payments on certain of its debt securities. See "Description of the Series A
QUIDS--Interest--Extension Period Restrictions" in this prospectus supplement.
Redemption
The Series A QUIPS will remain outstanding until the Trust redeems them or
distributes the Series A QUIDS in exchange for the Series A QUIPS. Any
redemption of Series A QUIPS must occur as described below. Any exchange
distribution must occur as described below in "--Exchange of Series A QUIPS for
Series A QUIDS."
Redemption of Series A Trust Securities
If Edison International repays or redeems the Series A QUIDS, whether at
their stated maturity, upon acceleration after a Subordinated Indenture Event
of Default or upon early redemption, the Property Trustee will redeem a Like
Amount of Series A Trust Securities on the Redemption Date at the Redemption
Price. In this context, "Like Amount" means Series A Trust Securities having an
aggregate liquidation amount equal to the aggregate principal amount of the
Series A QUIDS being repaid or redeemed. "Redemption Date" means the date that
the principal of those Series A QUIDS becomes due for payment under the
Subordinated Indenture. "Redemption Price" means the aggregate liquidation
amount of the Series A Trust Securities to be redeemed, plus any accumulated
and unpaid distributions on those securities to the Redemption Date.
Repayment and Redemption of Series A QUIDS
The Series A QUIDS initially will have a stated maturity of , which
Edison International may shorten to a date on or after or, subject to
certain conditions being satisfied, extend to . See "Description of the
Series A QUIDS--Stated Maturity" in this prospectus supplement.
Edison International also may redeem the Series A QUIDS, at its option,
before their stated maturity as follows:
. at any time on or after , 2004, in whole or in part, provided that no
partial redemption may occur during an extension period, and
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. at any time in whole, but not in part, within 90 days after a Tax Event
or an Investment Company Act Event has occurred.
Please see "Description of Series A QUIDS--Optional Redemption" in this
prospectus supplement for the definitions of "Tax Event" and "Investment
Company Act Event."
If a Tax Event is continuing and Edison International does not elect to
redeem the Series A QUIDS or liquidate the Trust, Edison International may be
required to pay additional sums on the Series A QUIDS. The provisions regarding
repayment and redemption of the Series A QUIDS, as well as information about
the effect that possible tax law changes may have on the Series A QUIDS and
Series A QUIPS, are discussed in "Description of the Series A QUIDS--Stated
Maturity," "--Optional Redemption" and "--Payment of Additional Sums" in this
prospectus supplement.
Redemption Procedures
The Property Trustee will give you at least 30 days, but not more than 60
days, notice before the Redemption Date, unless the redemption results from
acceleration after a Subordinated Indenture Event of Default and the Property
Trustee is not able to give notice during this period. In that case, the
Property Trustee will give the notice as soon as practicable. The Property
Trustee will give the notice of redemption in the manner described below under
"--Notices."
The Property Trustee will irrevocably deposit with DTC (in the case of any
book-entry Series A QUIPS) or the Paying Agent (as defined below) (in the case
of any non-book-entry Series A QUIPS) funds sufficient to pay the Redemption
Price for all Series A Trust Securities being redeemed on that date, to the
extent that funds are available to the Property Trustee. The Property Trustee
will deposit such funds by 2:00 p.m., New York City time, on the Redemption
Date.
DTC will pay the Redemption Price for Series A QUIPS held in book-entry
form and called for redemption in accordance with the procedures of DTC, to the
extent the Property Trustee has deposited sufficient funds with DTC. The Paying
Agent will pay the Redemption Price for Series A QUIPS held in certificated
form and called for redemption, to the extent the Property Trustee has
deposited sufficient funds with the Paying Agent, against surrender of the
certificates representing those Series A QUIPS. Any distributions that are due
on a distribution date that is on or before the Redemption Date will be payable
to the holders of those Series A QUIPS on the record date for the related
distribution date.
Once the Property Trustee gives notice of redemption and deposits funds as
discussed above, all rights of the holders of the Series A Trust Securities
called for redemption will cease at the time of the deposit, except the right
of those holders to receive the Redemption Price, but without interest on that
amount. In addition, those Series A Trust Securities will no longer be
outstanding.
On the Redemption Date, distributions will stop accumulating on the Series
A QUIDS called for redemption. However, if payment of the Redemption Price for
any Series A Trust Securities is not made, distributions on the Series A QUIPS
will continue to accumulate to the date the Redemption Price is paid.
If the Trust redeems less than all the Series A Trust Securities, then the
liquidation amount of Series A Trust Securities to be redeemed will be
allocated pro rata between the outstanding Series A QUIPS and the outstanding
Series A Common Securities, based upon their respective liquidation amounts.
Within 60 days of the Redemption Date, the Property Trustee will select the
Series A Trust Securities to be redeemed from among the outstanding Series A
Trust Securities not previously called for redemption. The Property Trustee may
use any method of selection that it deems to be fair and appropriate.
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Other Purchases of Series A QUIPS
Edison International or its subsidiaries may purchase outstanding Series A
QUIPS by tender, in the open market or by private agreement, subject to
applicable laws, including United States federal securities laws.
Exchange of Series A QUIPS for Series A QUIDS
Edison International will have the right at any time, in its sole
discretion, to terminate the Trust. After the Trust has satisfied all
liabilities to its creditors, as provided by law, the Property Trustee will
distribute a Like Amount of Series A QUIDS to the holders of the Series A Trust
Securities in exchange for all the outstanding Series A Trust Securities, in
liquidation of the Trust. In this context, "Like Amount" means Series A QUIDS
having an aggregate principal amount equal to the aggregate liquidation amount
of all outstanding Series A Trust Securities.
Edison International must use its best efforts to list the Series A QUIDS
on the New York Stock Exchange or such other stock exchange or organization, if
any, on which the Series A QUIPS are listed if an exchange distribution occurs.
Exchange Procedures
The Property Trustee will make the exchange distribution to holders of
Series A QUIPS listed in the Trust's records at the close of business on the
record date for the exchange distribution. If the Series A QUIPS are held in
book-entry form, the record date will be one Business Day (as defined below)
before the date that Edison International sets as the exchange distribution
date (the "Exchange Date"). If the Series A QUIPS are not held in book-entry
form, the record date will be the 15th day (whether or not a Business Day)
before the Exchange Date.
The Property Trustee will give you at least 30 days, but not more than 60
days, notice before the Exchange Date. The Property Trustee will give the
notice of an Exchange Date in the manner described below under "--Notices."
On the Exchange Date:
. the Series A QUIPS will no longer be outstanding,
. certificates representing a Like Amount of Series A QUIDS will be issued
to holders of Series A QUIPS upon their surrender to the Property Agent
or its agent for exchange,
. any certificates representing Series A QUIPS that are not surrendered
for exchange will be deemed to represent a Like Amount of Series A QUIDS
(and until such certificates are surrendered for exchange, no payments
of interest or principal on such Series A QUIDS will be made to the
holders of those Series A QUIPS), and
. the holders of Series A QUIPS will not have any further rights with
respect to the Series A QUIPS, except the right to receive certificates
representing Series A QUIDS upon surrender of their certificates as
described above.
Certain Tax Consequences
Under current United States federal income tax law and interpretations and
assuming, as we expect, that the Trust will not be classified as an association
taxable as a corporation, you would not be taxed if the Property Trustee
distributes the Series A QUIDS to you upon liquidation of the Trust. However,
if a Tax Event were to occur and the Trust were subject to taxation on income
received or accrued on the Series A QUIDS, you and the Trust could be taxed on
that distribution. See "Material
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United States Federal Income Tax Considerations--Distribution of Series A QUIDS
to Holders of Series A QUIPS Upon Liquidation of the Trust" in this prospectus
supplement.
Ranking
The Series A QUIPS will rank equally with the Series A Common Securities.
The Trust will make payments of distributions and the Redemption Price on the
Series A QUIPS and the Series A Common Securities pro rata, based on the
liquidation amounts of the Series A QUIPS and Series A Common Securities,
except as follows. If a Subordinated Indenture Event of Default has occurred
and has not been cured, the Trust will not make any payments on the Series A
Common Securities until the Trust has paid in full or provided in full all
unpaid amounts on the Series A QUIPS.
If a Subordinated Indenture Event of Default occurs, the holders of the
Series A Common Securities will be deemed to have waived all rights to act with
respect to the related Trust Agreement Event of Default (as defined below)
until all such Trust Agreement Events of Default have been cured, waived or
eliminated. Until any such Trust Agreement Events of Default have been cured,
waived or eliminated, the Property Trustee will act solely on your behalf (and
not on behalf of the holders of the Series A Common Securities), and only you
will have the right to direct the Property Trustee to act on your behalf.
Trust Agreement Events of Default
The term "Trust Agreement Event of Default" means any of the following:
. a Subordinated Indenture Event of Default occurs (see "Description of
Debt Securities--Events of Default" in the accompanying prospectus),
. the Property Trustee does not pay any distribution within 30 days of its
due date, provided that no extension period is continuing,
. the Property Trustee does not pay any Redemption Price on its due date,
. the Securities Trustees remain in breach in a material respect of any
term of the Trust Agreement for 90 days after the Securities Trustees
receive notice of default stating the trustees are in breach. The notice
must be sent by the holders of at least 25% in liquidation amount of the
outstanding Series A QUIPS, or
. the Property Trustee files for bankruptcy or certain other events in
bankruptcy or insolvency occur and a successor Property Trustee is not
appointed within 60 days.
Within 90 days after learning of a Trust Agreement Event of Default, the
Property Trustee will notify the holders of the Series A Trust Securities, the
Regular Trustees and Edison International, unless the Trust Agreement Event of
Default has been cured or waived.
Edison International and the Regular Trustees must provide the Property
Trustee with an annual certificate stating whether they are in compliance with
all the conditions and covenants applicable to them under the Trust Agreement.
If a Trust Agreement Event of Default has occurred and has not been cured,
the Series A QUIPS will have a preference in right of payment over the Series A
Common Securities as discussed above. The holders of Series A Trust Securities
are not entitled to accelerate the maturity of the Series A QUIPS upon a Trust
Agreement Event of Default.
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Enforcement Rights
If a Subordinated Indenture Event of Default occurs, the holders of Series
A QUIPS must rely on the Property Trustee, as the holder of the Series A QUIDS,
to enforce its rights under the Series A QUIDS and the Subordinated Indenture
against Edison International, subject to the following:
Right of Direct Action
If Edison International does not make full and timely payments on the
Series A QUIDS, the Trust will not have funds available to make payments of
distributions or other amounts due on the Series A QUIPS. In this event, a
holder of Series A QUIPS may sue Edison International directly to collect its
pro rata share of payments owed. Edison International may not amend the
Subordinated Indenture to remove the right of any holder of Series A QUIPS to
bring a direct action against Edison International without the prior written
consent of all of the holders of Series A QUIPS. Edison International will be
able to set-off any payment made to a holder of Series A QUIPS in connection
with a direct action.
Other Rights under the Subordinated Indenture
The holders of 25% or more in liquidation amount of the outstanding Series
A QUIPS may accelerate the maturity of the Series A QUIDS when a Subordinated
Indenture Event of Default has occurred and has not been cured and neither the
Subordinated Indenture Trustee nor the holders of the Series A QUIDS have
exercised such acceleration rights. In addition, the holders of a majority in
liquidation amount of the outstanding Series A QUIPS may cancel a declaration
of acceleration of the Series A QUIDS and may waive specified Subordinated
Indenture Events of Default. See "Description of Debt Securities--Remedies" in
the accompanying prospectus.
Notices
Notices to be given to holders of Series A QUIPS held in book-entry form
will be given to DTC in accordance with its procedures. Notices to be given to
holders of Series A QUIPS held in certificated form may be given by mail to
their addresses set forth in the Trust's records.
Payment and Paying Agency
If the Series A QUIPS are held in book-entry form, distributions will be
paid to DTC, which will credit the relevant accounts at DTC on the applicable
distribution dates in accordance with its procedures. If the Series A QUIPS are
issued in certificated form, distributions will be paid by check mailed to the
address of the holder entitled to such payments, as such address appears in the
Trust's records. The paying agent of the Trust (the "Paying Agent") will
initially be the Property Trustee. Any Paying Agent may resign upon 30 days'
written notice to the Regular Trustees and the Property Trustee. In such event,
the Property Trustee will appoint a successor acceptable to the Regular
Trustees to act as Paying Agent.
Persons holding their Series A QUIPS in "Street Name" or indirectly through
DTC should consult their banks or brokers for information on how they will
receive payments. See "Book-Entry Issuance--"Street Name' and Other Indirect
Holders" in this prospectus supplement.
Any money paid to the Property Trustee or any Paying Agent for payments on
the Series A QUIPS that remains unclaimed at the end of two years after the
amount is due will be repaid to Edison International. After that two-year
period, you may look only to Edison International for payment of those amounts.
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Business Day
If any payment is due on a day that is not a Business Day, the payment will
be made on the following 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). Each payment made on the following or preceding
Business Day will have the same force and effect as if made on the original
payment due date. "Business Day" means any day other than a Saturday, a Sunday,
a day on which banking institutions in New York City or Los Angeles, California
are authorized or required by law or executive order to remain closed or a day
on which the corporate trust office of the Property Trustee or the Subordinated
Indenture Trustee is closed for business.
Record Date
The Trust will pay distributions to holders of Series A QUIPS listed in the
Trust's records on the record date for the payment. If the Series A QUIPS are
held in book-entry form, the record date will be one Business Day before the
relevant distribution date. If the Series A QUIPS are issued in certificated
form, the record date will be the 15th day, whether or not a Business Day,
before the relevant distribution date.
Registrar and Transfer Agent
The Property Trustee will initially act as the Trust's agent for
registering Series A QUIPS in the names of holders and transferring Series A
QUIPS. The Property Trustee also will perform the role of maintaining the list
of registered holders of Series A QUIPS. Holders will not be required to pay a
service charge to transfer or exchange Series A QUIPS, but may be required to
pay for any tax or other governmental charge associated with the exchange or
transfer.
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DESCRIPTION OF THE SERIES A QUIDS
This section describes the specific terms of the Series A QUIDS. This
description supplements, and should be read together with, the description of
the general terms and provisions of the Series A QUIDS set forth in the
accompanying prospectus under the caption "Description of Debt Securities." The
following description does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, the description in the accompanying
prospectus and the Subordinated Indenture. We have filed a form of the
Subordinated Indenture (including a form of supplemental indenture) as an
exhibit to the Registration Statement of which the accompanying prospectus is a
part.
General
Edison International will issue Series A QUIDS in denominations that are
integral multiples of $25 and in an aggregate principal amount of $ ($ ,
if the Underwriters' overallotment option is exercised in full). The Trust will
use the proceeds from the sale of the Series A QUIPS to purchase the Series A
QUIDS. The Property Trustee will hold legal title to the Series A QUIDS in
trust for the benefit of the holders of the Series A Trust Securities.
The Subordinated Indenture will be qualified as an indenture under the
Trust Indenture Act. The Subordinated Indenture Trustee will act as indenture
trustee for the Series A QUIDS, in order to comply with the provisions of the
Trust Indenture Act.
The Series A QUIDS are not secured by any property or assets of Edison
International. The Series A QUIDS will rank junior in priority of payment to
specified existing and future debt and other liabilities of Edison
International which are described below under "--Subordination."
Interest
Interest will accrue on the Series A QUIPS from the date they are first
issued at the annual rate of % of their principal amount. Unless deferred as
described below, interest will be payable quarterly in arrears on August 31,
November 30, February 28 and May 31 of each year (each, an "interest payment
date"), beginning August 31, 1999. The amount of interest payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months.
Extension Periods
As long as no Subordinated Indenture Event of Default has occurred and has
not been cured, Edison International will have the right to defer the payment
of interest on the Series A QUIDS as described in "Description of the Series A
QUIPS--Distributions" in this prospectus supplement. During an extension
period, the holders of Series A QUIDS will continue to accrue interest at the
rate stated above, plus will accrue additional interest on each deferred
interest payment at the annual rate of %, compounded quarterly, from the
corresponding interest payment date, to the extent permitted by law. Whenever
we use the term "interest" with respect to the Series A QUIDS in this
prospectus supplement, we are including any of this additional interest.
Extension Period Restrictions
During an extension period, Edison International and its subsidiaries may
not take any of the following actions, except as described below:
. declare or pay any dividend or other distribution on, redeem, purchase
or acquire, or make a liquidation payment on any shares of Edison
International's capital stock,
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. pay any amount on or repay, redeem or repurchase any debt securities
issued by Edison International that rank equally with or junior to the
Series A QUIDS, or
. make any payments under any of Edison International's guarantees if such
guarantee ranks equally with or junior to the Series A QUIDS and
guarantees payments on any debt security of any of Edison
International's subsidiaries.
Notwithstanding the foregoing, Edison International may take any of the
following actions during an extension period:
. declare dividends in, or make any payment in, shares of common stock of
Edison International,
. purchase its common stock if related to the issuance of common stock
under any of Edison International's benefit plans for its directors,
officers or employees, or
. declare a dividend in connection with any stockholder's rights plan,
issue stock under such plan or repurchase any rights distributed
pursuant to the plan.
Extension Period Procedures
Edison International will give the Property Trustee, the Regular Trustees
and the Subordinated Indenture Trustee notice of its election to begin an
extension period at least one Business Day before the earlier of:
. the next distribution date for the Series A QUIPS, or
. the date the Regular Trustees are required to give notice of the record
date or the distribution date to (1) the New York Stock Exchange or
other applicable self-regulatory organization or (2) the holders of the
Series A QUIPS.
The Subordinated Indenture Trustee must notify the holders of the Series A
QUIDS in the manner described below in "--Notices" of Edison International's
election to begin an extension period.
Stated Maturity
The Series A QUIDS initially will have a stated maturity of . However,
Edison International may shorten the stated maturity to a date on or after .
You should expect that Edison International will exercise this option if, for
example, a tax development occurs that prohibits Edison International from
deducting interest payments on the Series A QUIDS unless the Series A QUIDS
have a shorter maturity date.
Edison International also will have the option to extend the stated
maturity to , if:
. Edison International is not in bankruptcy, insolvent or in liquidation,
. Edison International is not in default on the payment of interest or
principal on the Series A QUIDS,
. the Trust is not in arrears on payments of distributions on the Series A
QUIPS,
. no deferred distributions are accumulated on the Series A QUIPS, and
. the Series A QUIPS are rated at least BBB- by Standard & Poor's Ratings
Services or Baa3 by Moody's Investors Services, Inc. or an equivalent
rating by a successor rating agency.
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You should assume that Edison International will exercise its option to
extend the stated maturity if Edison International is unable to refinance at a
lower interest rate or it is in the interest of Edison International to defer
the stated maturity of the Series A QUIDS.
Procedures
Edison International will give notice to the Subordinated Indenture Trustee
of its selection of a new stated maturity at least 30 days, but not more than
60 days, prior to the effective date of the change. The Subordinated Indenture
Trustee will give holders of Series A QUIDS notice of the new stated maturity
promptly upon its receipt of the notice from Edison International. The
Subordinated Indenture Trustee will give the notice in the manner described
below under "--Notices."
Optional Redemption
Edison International may redeem the Series A QUIDS, at its option, before
their stated maturity as follows:
. at any time on or after , 2004, in whole or in part, provided that no
partial redemption may occur during an extension period, and
. at any time in whole, but not in part, within 90 days after a Tax Event
or an Investment Company Act Event has occurred.
Edison International will pay the Redemption Price on the redemption date
to the holders of Series A QUIDS to be redeemed. In this context, "Redemption
Price" means the aggregate principal amount of the Series A QUIDS to be
redeemed, plus any accrued and unpaid interest on those securities to the
redemption date.
Tax Event
"Tax Event" means that Edison International receives an opinion of counsel,
experienced in such matters, that as a result of any Tax Change, there is more
than an insubstantial risk that:
. the Trust is, or will be within 90 days after the date of the opinion of
counsel, subject to United States federal income tax with respect to
income received or accrued on the Series A QUIDS,
. interest payable by Edison International or original issue discount
accruing on the Series A QUIDS is not, or within 90 days after the date
of the opinion, will not be, deductible by Edison International, in
whole or in part, for United States federal income tax purposes, or
. the Trust is, or will be within 90 days after the date of the opinion,
subject to more than a minimal amount of other taxes, duties or
governmental charges.
As used above, "Tax Change" means any of the following that are enacted,
promulgated or announced on or after the date of this prospectus supplement:
. amendment to or change, including any announced prospective change, in
the laws or any regulations under the laws of the United States or of
any political subdivision or taxing authority of the United States, or
. official administrative pronouncement or judicial decision interpreting
or applying the laws or regulations stated above whether or not the
pronouncement or decision is issued to or in connection with a
proceeding involving Edison International or the Trust or is subject to
review or appeal.
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Please see "Material United States Federal Income Tax Considerations--
Possible Tax Law Changes" in this prospectus supplement for a description of
certain tax law developments that could result in a Tax Event.
Investment Company Act Event
"Investment Company Act Event" means that Edison International receives an
opinion of counsel, experienced in such matters, that as a result of the
occurrence of a change in law or regulation, or a written change in
interpretation or application of law or regulation, by any legislative body,
court, governmental agency or regulatory authority effective on or after the
date of this prospectus supplement, there is more than an insubstantial risk
that the Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act of 1940, as amended.
Payment of Additional Sums
If a Tax Event is continuing and Edison International does not elect to
redeem the Series A QUIDS or liquidate the Trust, Edison International will pay
additional amounts, if any, to the holders of the Series A QUIDS so that,
notwithstanding any additional taxes, duties or charges imposed on the Trust
because of a Tax Event, the Trust will have sufficient funds to pay the full
amount of distributions due on the outstanding Series A Trust Securities.
Redemption Procedures
Edison International will give the holders of the Series A QUIDS at least
30 days, but not more than 60 days, notice before the redemption date, in the
manner described below under "--Notices" in this prospectus supplement. In all
other respects, the procedures for redeeming the Series A QUIDS will be similar
to those for redeeming the Series A QUIPS. See "Description of the Series A
QUIPS-- Redemption--Redemption Procedures" in this prospectus supplement.
On the redemption date, interest will stop accruing on the Series A QUIDS
called for redemption. However, if payment of the Redemption Price for any
Series A QUIDS is not made, interest on those Series A QUIDS will continue to
accrue to the date the Redemption Price is paid.
Exchange of Series A QUIPS for Series A QUIDS
Edison International will have the right at any time to terminate the
Trust. In such event, the Property Trustee will distribute the Series A QUIDS
to the holders of the Series A Trust Securities in exchange for their
securities. See "Description of the Series A QUIPS--Exchange of Series A QUIPS
for Series A QUIDS" in this prospectus supplement for the terms and procedures
relating to such an exchange.
Restrictions on Payments
If any Series A QUIDS are outstanding, Edison International will be
prohibited from taking specified actions described below if:
. an event has occurred that constitutes a Subordinated Indenture Event of
Default or, after notice or passage of time, or both, would constitute a
Subordinated Indenture Event of Default, and Edison International has
knowledge of such event but does not take reasonable steps to cure the
default,
. Edison International does not pay any amount due under the Series A
QUIPS Guarantee relating to the Series A QUIPS, if the Series A QUIDS
are held by the Trust, or
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. Edison International has given notice of its election to begin an
extension period and has not rescinded such notice, or any extension
period is continuing.
In such event, Edison International may not take any of the following
actions, except as described below:
. declare or pay any dividend or other distribution on, redeem, purchase
or acquire, or make a liquidation payment on any shares of Edison
International's capital stock,
. pay any amount on or repay, redeem or repurchase any debt securities
issued by Edison International that rank equally with or junior to the
Series A QUIDS, or
. make any payments under any of Edison International's guarantees if such
guarantee ranks equally with or junior to the Series A QUIDS and
guarantees payments on any debt securities of any of Edison
International's subsidiaries.
Notwithstanding the foregoing, Edison International may:
. declare dividends in, or make any payment in, shares of common stock of
Edison International,
. purchase its common stock if related to the issuance of common stock
under any of Edison International's benefit plans for its directors,
officers or employees,
. declare a dividend in connection with any stockholder's rights plan,
issue stock under such plan or repurchase any rights distributed
pursuant to the plan, or
. make payments under the Series A QUIPS Guarantee or any other Preferred
Securities Guarantee (as defined in the accompanying prospectus).
Consolidation, Merger and Conveyance of Assets as an Entirety
Edison International is required to satisfy the conditions described under
"Description of Debt Securities--Consolidation, Merger and Conveyance of Assets
as an Entirety" in the accompanying prospectus, in order to consolidate with or
merge into any other entity or convey, transfer or lease its properties and
assets substantially as an entirety to any entity. In addition to these
conditions, the successor entity must assume all of Edison International's
obligations with respect to the Series A QUIPS Guarantee and Expense Agreement,
and such transaction must be permitted under, and not give rise to any
violation of, the Trust Agreement or the Series A QUIPS Guarantee.
Modification of Subordinated Indenture
The Subordinated Indenture may be modified, amended or supplemented under
the circumstances described under "Description of Debt Securities--Modification
of Indenture" in the accompanying prospectus. However, any amendment that
adversely affects the holders of the Series A QUIPS in any material respect, as
well as any termination of the Subordinated Indenture and any waiver of a
Subordinated Indenture Event of Default, will require the consent of the
holders of a majority in liquidation amount of the Series A QUIPS.
Subordination
The Series A QUIDS are subordinated securities and, as a result, the
payment of principal, interest and any other amount on the Series A QUIDS is
subordinated in right of payment to the prior payment in full of all of Edison
International's Senior Debt. This means that in certain circumstances where
Edison International may not be making payments on all of its debt obligations
as they come due, the holders of all of Edison International's Senior Debt will
be entitled to receive payment in full
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of all amounts that are due or will become due on the Senior Debt before
holders of Series A QUIDS will be entitled to receive any amounts on the
Series A QUIDS. These circumstances include:
. Edison International makes a payment or distributes assets to creditors upon
any liquidation, dissolution, winding up or reorganization of Edison
International, or as part of an assignment or marshalling of Edison
International's assets for the benefit of its creditors,
. Edison International files for bankruptcy or certain other events in
bankruptcy, insolvency or similar proceedings occur, or
. the maturity of the Series A QUIDS is accelerated. (For example, the entire
principal amount of the Series A QUIDS may be declared to be due and
immediately payable or may be automatically accelerated due to a
Subordinated Indenture Event of Default as described under "'Description of
Debt Securities--Events of Default" in the accompanying prospectus.)
In addition, Edison International is not permitted to make payments of
principal, any interest or any other amounts on the Series A QUIDS if it
defaults in its obligation to make payments on Senior Debt and does not cure
such default, if an event of default that permits the holders of Senior Debt
to accelerate the maturity of the Senior Debt occurs, or if any judicial
proceeding is pending with respect to any of these defaults.
These subordination provisions mean that if Edison International is insolvent,
a holder of Edison International's Senior Debt may ultimately receive out of
Edison International's assets more than a holder of Series A QUIDS.
In this context, "Senior Debt" means the principal, any premium and interest
on all of Edison International's indebtedness (including indebtedness of
others that Edison International guarantees), whether such indebtedness exists
now or is created, incurred or assumed by Edison International after the date
of this prospectus supplement, that:
. is for money Edison International borrows,
. is a letter of credit, bankers' acceptance or similar obligation of Edison
International,
. is evidenced by a note or similar instrument that Edison International has
given when it acquired any business, property or assets,
. is issued or assumed by Edison International as the deferred purchase price
of property or services (other than trade accounts payable or accrued
liabilities arising in the ordinary course of Edison International's
business), or
. Edison International owes as a lessee under the leases that generally
accepted accounting principles require Edison International to capitalize on
its balance sheet or leases made as part of any sale and leaseback
transaction it engages in.
Senior Debt also includes any amendment, renewal, replacement, extension,
modification or refunding of any indebtedness that itself was Senior Debt.
However, Senior Debt does not include indebtedness:
. that expressly states in the instrument creating or evidencing it that it
does not rank senior in right of payment to the Series A QUIDS or to any
other indebtedness of Edison International that ranks equally with or junior
to the Series A QUIDS,
. that is without recourse to Edison International at the time such debt was
incurred (without respect to any election under Section 1111(b) of the
Bankruptcy Code),
. to any of Edison International's subsidiaries, or
. to any of Edison International's employees not incurred in the ordinary
course of business.
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Senior Debt does not include the Series A QUIDS.
Because Edison International is a holding company, Edison International's
right to participate in any asset distribution of any of its subsidiaries, on
liquidation, reorganization or otherwise, will rank junior to rights of all
creditors of that subsidiary (except to the extent that Edison International
may itself be a creditor of that subsidiary). The rights of holders of Series A
QUIDS to benefit from those distributions will also be junior to those prior
claims. Consequently, the Series A QUIDS will be effectively subordinated to
all liabilities of Edison International's subsidiaries. A holder of Series A
QUIDS should look only to the assets of Edison International for payments on
the Series A QUIDS.
At March 31, 1999, Edison International had total liabilities of
approximately $21.217 billion. Of this amount, approximately $6.770 billion
would be Senior Debt of Edison International or liabilities of its subsidiaries
that would effectively rank senior to the Series A QUIDS. During the second
quarter of 1999, Edison International's subsidiaries issued the following
additional Senior Debt:
.$300 million of 6.65% notes due 2029 in April 1999
.$120 million of 6.0% preferred securities in May 1999
.$600 million of 7.73% senior notes due 2009 in June 1999
The Series A QUIDS, the Subordinated Indenture and the Series A QUIPS
Guarantee do not limit Edison International's or any of its subsidiaries'
ability to incur additional indebtedness, including indebtedness that ranks
senior to the Series A QUIDS and the Series A QUIPS Guarantee. We expect that
Edison International and its subsidiaries may incur substantial additional
amounts of indebtedness in the future.
Satisfaction and Discharge
The Subordinated Indenture will cease to be of further effect, and Edison
International will be deemed to have satisfied and discharged all of its
obligations under the Subordinated Indenture, except as noted below, when:
. all outstanding Series A QUIDS have become due or will become due within
one year at their stated maturity or on a Redemption Date, and
. Edison International deposits with the Indenture Trustee, in trust,
funds and/or government obligations that are sufficient to pay and
discharge all remaining indebtedness on the outstanding Series A QUIDS.
Edison International will remain obligated to pay all other amounts due
under to the Subordinated Indenture and to take certain ministerial tasks as
described in the Subordinated Indenture.
Payments
Edison International will pay interest to the direct holders of Series A
QUIDS listed in Edison International's records at the close of business on the
record date, as discussed below, in advance of each interest payment date. If
the Series A QUIDS are distributed in exchange for the Series A QUIPS, Edison
International will make payments on the Series A QUIDS in accordance with
procedures similar to those described under "Description of the Series A
QUIPS--Payment and Paying Agents" in this prospectus supplement.
Any money paid to the Subordinated Indenture Trustee or any paying agent,
or held in trust by Edison International, for payments on any Series A QUIDS,
that remains unclaimed at the end of two years after the amount is due will be
repaid to Edison International. After that two-year period, a holder of Series
A QUIDS may look only to Edison International for payment of those amounts.
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Business Day
If any payment is due on a day that is not a Business Day, the payment will
be made on the following 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. Each payment made on the following or preceding
Business Day will have the same force and effect as if made on the original
payment due date.
Record Date
If the Series A QUIDS are held in book-entry form, the record date will be
one Business Day before the relevant interest payment date. If the Series A
QUIDS are held in certificated form, the record date will be the 15th day,
whether or not a Business Day, before the relevant interest payment date.
Notices
Notices to be given to holders of Series A QUIDS held in certificated form
may be given by mail to their addresses as set forth in Edison International's
records. Notices to be given to holders of Series A QUIDS held in book-entry
form will be given to DTC in accordance with its procedures.
BOOK-ENTRY ISSUANCE
"Street Name" and Other Indirect Holders
Investors who hold Series A QUIPS in accounts at banks or brokers will
generally not be recognized by the Trust as legal holders of Series A QUIPS.
This is called holding in "Street Name." Instead, the Trust would recognize
only the bank or broker that directly holds, or the financial institution the
bank or broker uses to hold, its Series A QUIPS. These intermediary banks,
brokers and other financial institutions pass along distributions and other
payments on the Series A QUIPS, either because they agree to do so in their
customer agreements or because they are legally required to. If you hold Series
A QUIPS in "Street Name," you should check with your own institution to find
out:
. how it handles securities payments and notices,
. whether it imposes fees or charges,
. how it would handle voting if ever required,
. whether and how you can instruct it to send you Series A QUIPS
registered in your own name so you can be a direct holder as described
below, and
. how it would pursue rights under the Series A QUIPS if there were a
default or other event triggering the need for holders to act to protect
their interests.
Direct Holders
The Trust's obligations, as well as the obligations of Edison
International, the Securities Trustees and those of any third parties employed
by the Trust, Edison International or the Securities Trustees, run only to
individuals, corporations or other entities who are registered as holders of
Series A QUIPS. As noted above, the Trust does not have obligations to you if
you hold in "Street Name" or other indirect means, either because you choose to
hold Series A QUIPS in that manner or because the Series A QUIPS are issued in
the form of global securities as described below. For example, once the Trust
makes payment to the registered holder, the Trust has no further responsibility
for the payment even if that holder is legally required to pass the payment
along to you as a "Street Name" customer but does not do so.
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Global Securities
What is a Global Security?
The Series A QUIPS will be issued in the form of global securities, and,
therefore, the ultimate beneficial owners can only be indirect holders. The
Trust does this by requiring that the global security be registered in the name
of DTC or its nominee and by requiring that the Series A QUIPS included in the
global security not be transferred in the name of any other direct holder
unless the special circumstances described below occur. Any person wishing to
own Series A QUIPS must do so indirectly by virtue of an account with a broker,
bank or other financial institution that in turn has an account with DTC.
Special Investor Considerations for Global Securities
As an indirect holder, an investor's rights relating to a global security
will be governed by the account rules of the investor's financial institution
and of DTC, as the well as general laws relating to securities transfers. The
Trust does not recognize this type of investor as a holder of Series A QUIPS
and instead deals only with DTC or its nominee. See "--The DTC System" below.
An investor should be aware that because Series A QUIPS are issued only in
the form of global securities:
. the investor cannot get Series A QUIPS registered in his or her own
name,
. the investor cannot receive physical certificates for his or her
interest in the Series A QUIPS,
. the investor will be a "Street Name" holder and must look to his or her
own bank or broker for payments on the Series A QUIPS and protection of
his or her legal rights relating to the Series A QUIPS (see "--"Street
Name' and Other Indirect Holders" above),
. the investor may not be able to sell interests in the Series A QUIPS to
some insurance companies and other institutions that are required by law
to own their securities in the form of physical certificates,
. DTC's policies will govern payments, transfers, exchange and other
matters relating to the investor's interest in the global security (see
"--The DTC System" below; the Trust, Edison International and the
Securities Trustees have no responsibility for any aspect of DTC's
actions or for its records of ownership interests in the global
security, nor do they supervise DTC in any way), and
. payment for purchases and sales in the market for corporate bonds and
notes is generally made in next-day funds. In contrast, DTC will usually
require that interests in a global security be purchased or sold within
its system using same-day funds. This difference could have some effect
on how global security interests trade, but neither Edison International
nor the Trust knows what that effect will be.
Special Situations When Global Security Will Be Terminated
In a few special situations, the global security will terminate and
interests in it will be exchanged for physical certificates representing Series
A QUIPS. After that exchange, the choice of whether to hold Series A QUIPS
directly or in "Street Name" will be up to the investor. Investors must consult
their own bank or brokers to find out how to have their interests in Series A
QUIPS transferred to their own name, so that they will be direct holders. The
rights of "Street Name" investors and direct holders in the Series A QUIPS are
described above under "--"Street Name' and Other Indirect Holders" and "--
Direct Holders."
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The special situations for termination of a global security are:
. DTC notifies Edison International or the Trust that it is unwilling,
unable or no longer qualified to continue as the depositary for the
Series A QUIPS,
. Edison International in its sole discretion determines that the global
security will be exchangeable for certificated Series A QUIPS, or
. a Trust Agreement Event of Default has occurred and has not been cured
and the holders of a majority in liquidation amount of the outstanding
Series A QUIPS determine that the global security will be exchangeable
for certificated Series A QUIPS.
When a global security terminates, DTC (and not the Trust, Edison
International or the Securities Trustees) is responsible for deciding the names
of the institutions that will be the initial direct holders.
The DTC System
DTC has advised us that it is a limited-purpose trust company created to
hold securities for its participating organizations (the "Participants"). DTC
also facilitates the clearance and settlement between Participants of
transactions of securities deposited with DTC through changes in the account
records of its Participants. The Participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations. The Underwriters are Participants of the DTC System. Access to
DTC's system is also available to other entities such as securities brokers and
dealers, banks and trust companies that work through a Participant (the
"Indirect Participants").
When you purchase Series A QUIPS through the DTC system, the purchases must
be made by or through a Participant, who will receive credit for the Series A
QUIPS on DTC's records. Since you actually own the Series A QUIPS, you are the
beneficial owner and your ownership interest will only be recorded on the
Participants' or Indirect Participants' records. DTC has no knowledge of your
individual ownership of the Series A QUIPS. DTC's records only show the
identity of the Participants and the amount of the Series A QUIPS held by or
through them. You will not receive a written confirmation of your purchase or
sale or any periodic statement directly from DTC. You will receive these from
your Participant or Indirect Participant. Thus the Participants or Indirect
Participants are responsible for keeping accurate account of the holdings of
their customers like you.
Any redemption notices will be sent by Edison International and the Trust
directly to DTC, who will in turn inform the Participants, who will then
contact you as a beneficial holder. If less than all of the Series A QUIPS are
being redeemed, DTC's current practice is to choose by lot the amount of the
interest of each Participant to be redeemed. The Participant will then use an
appropriate method to allocate the redemption price among its beneficial
holders like you.
It is DTC's current practice, upon receipt of any payment of distributions
or liquidation amount, to credit Participants' accounts on the payment date
based on their holdings of beneficial interests in the global securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to Participants whose accounts are credited with
Series A QUIPS on a record date, by using an omnibus proxy. Payments by
Participants to owners of beneficial interests in the global securities, and
voting by Participants, will be based on the customary practices between the
Participants and owners of beneficial interests, as is the case with the Series
A QUIPS held for the account of customers registered in "Street Name." However,
payments will be the responsibility of the Participants and not of DTC, the
Securities Trustees, the Trust or Edison International.
We have obtained the information concerning DTC and DTC's book-entry system
from sources that we believe to be accurate, but we are not responsible for the
accuracy of this information. In
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addition, we are not responsible for the performance by DTC, its Participants
or any Indirect Participants of any of their obligations.
Registration of Series A QUIDS
The Series A QUIDS initially will be issued in certificated form and
registered in the name of the Property Trustee. If in the future the Series A
QUIDS are distributed to the holders of Series A QUIPS in exchange for the
Series A QUIPS and at that time the Series A QUIPS are represented by a global
security, the Series A QUIDS would also be represented by a global security. In
this event, we expect that the book-entry arrangements applicable to the Series
A QUIPS would be similar to those applicable to the Series A QUIDS.
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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
General
In the opinion of Latham & Watkins, counsel to Edison International and the
Trust, the following is a summary of the material U.S. federal income tax
consequences relating to the purchase, ownership and disposition of Series A
QUIPS. This summary only addresses the tax consequences to a person that
acquires Series A QUIPS on their original issue date at their original offering
price and that is a United States Holder. A "United States Holder" is:
. an individual citizen or resident of the United States,
. a corporation organized under the laws of the United States, any state
or the District of Columbia,
. an estate the income of which is subject to U.S. federal income tax
without regard to its source, or
. a trust if a U.S. court is able to exercise primary supervision over
administration of the trust and one or more U.S. persons have authority
to control all substantial decisions of the trust.
This summary does not purport to deal with all aspects of taxation that may
be relevant to a holder in light of its personal investments or tax
circumstances, or to holders who receive special treatment under the federal
income tax laws, including, without limitation:
. persons that are not United States Holders, except as described below
under "--Non-United States Holders,"
. financial institutions,
. insurance companies,
. regulated investment companies,
. real estate investment trusts,
. tax exempt organizations,
. broker-dealers,
. persons that will hold Series A QUIPS as part of a position in a
"straddle" or as part of a "hedging," "conversion" or other integrated
investment transaction for U.S. federal income tax purposes,
. persons whose functional currency is not the U.S. dollar, or
. persons that do not hold Series A QUIPS as capital assets.
This summary is based upon the U.S. Internal Revenue Code of 1986, as
amended (the "Code"), Treasury regulations, Internal Revenue Service rulings
and pronouncements and judicial decisions now in effect, all of which are
subject to change at any time. These changes may be applied retroactively in a
manner that could cause the tax consequences to vary substantially from the
consequences described below, possibly having an adverse affect on a beneficial
owner of Series A QUIPS.
The authorities on which this summary is based are subject to various
interpretations, and it is possible that the U.S. federal income tax treatment
of the purchase, ownership and disposition of Series A QUIPS may differ from
the treatment described below.
You are advised to consult with your own tax advisors in light of your own
particular circumstances as to the U.S. federal tax consequences of the
purchase, ownership and
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disposition of Series A QUIPS, as well as the effect of any state, local or
foreign tax laws and potential changes in applicable tax laws.
Classification of the Series A QUIDS and the Trust
Edison International, the Trust and the holders of the Series A QUIPS (by
the acceptance of a beneficial interest in a Series A QUIPS) have agreed to
treat the Series A QUIDS as indebtedness for all United States tax purposes and
the Series A QUIPS as evidence of an indirect beneficial ownership interest in
the Series A QUIDS. Given such treatment and assuming full compliance with the
terms of the Trust Agreement, the Indenture and certain other documents, the
Trust will be treated as a "grantor trust" and not as an association taxable as
a corporation and the Series A QUIDS will be treated as indebtedness for U.S.
federal income tax purposes. As a result, each beneficial owner of Series A
QUIPS will be required to include in its gross income its pro rata share of the
interest income, including original issue discount ("OID"), paid or accrued
with respect to the Series A QUIDS, whether or not cash is actually distributed
to the holders. See "--Interest Income and Original Issue Discount" below.
Interest Income and Original Issue Discount
Under Treasury regulations applicable to debt instruments issued on or
after August 13, 1996, a "remote" contingency that stated interest will not be
timely paid will be ignored in determining whether such debt instrument is
issued with OID. As a result of terms and conditions of the Series A QUIDS that
prohibit certain payments with respect to Edison International's capital stock
and indebtedness if Edison International elects to extend interest payment
periods, Edison International believes that the likelihood of its exercising
its option to defer payments is remote. See "Description of the Series A
QUIPS--Distributions." Based on the foregoing, Edison International believes
that the Series A QUIDS will not be considered to be issued with OID at the
time of their original issuance. Accordingly, the following discussion assumes
that unless and until Edison International exercises its option to defer any
payment of interest, the Series A QUIDS will not be treated as issued with OID.
Under the Treasury regulations, if Edison International exercises its
option to defer any payment of interest, the Series A QUIDS would at that time
be treated as issued with OID, and all stated interest on the Series A QUIDS
would thereafter be treated as OID as long as the Series A QUIDS remained
outstanding. In this event, all of a holder's taxable interest income with
respect to the Series A QUIDS would be accounted for as OID on an economic
accrual basis regardless of such holder's method of tax accounting, and actual
distributions of stated interest would not be reported as taxable income.
Consequently, a holder would be required to include OID in gross income even
though Edison International would not make any actual cash payments during an
Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the IRS, and it is possible that the IRS could take a
position contrary to the interpretation described above.
Because income on the Series A QUIPS will constitute interest or OID,
corporate United States Holders of the Series A QUIPS will not be entitled to a
dividends-received deduction with respect to any income taken into account with
respect to the Series A QUIPS.
Subsequent uses of the term "interest" in this summary include income in
the form of OID.
Distribution of Series A QUIDS to Holders of Series A QUIPS Upon Liquidation of
the Trust
A distribution by the Trust of the Series A QUIDS as described under the
caption "Description of the Series A QUIPS--Exchange of Series A QUIPS for
Series A QUIDS" will be nontaxable. This distribution will result in the holder
of Series A QUIPS receiving directly its pro rata share of the Series A QUIDS,
with a holding period and aggregate tax basis equal to the aggregate tax basis
the holder had in its Series A QUIPS before the distribution.
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If, however, the liquidation of the Trust were to occur because the Trust
is subject to U.S. federal income tax with respect to income accrued or
received on the Series A QUIDS, the distribution of Series A QUIDS to a holder
of Series A QUIPS would be a taxable event to the Trust and each holder of
Series A QUIPS, and each such holder would recognize gain or loss as if the
holder had exchanged its Series A QUIPS for the Series A QUIDS upon liquidation
of the Trust. A holder of Series A QUIPS will include interest in income in
respect of Series A QUIDS received from the Trust in the manner described above
under "--Interest Income and Original Issue Discount."
Sale or Redemption of Series A QUIPS
A holder that sells Series A QUIPS, including through a redemption for
cash, will recognize gain or loss equal to the difference between such holder's
adjusted tax basis in the Series A QUIPS and the amount realized on the sale of
such Series A QUIPS. Assuming that Edison International does not defer interest
payments on the Series A QUIDS, a holder's adjusted tax basis in the Series A
QUIPS generally will be its initial purchase price. If the Series A QUIDS are
deemed to be issued with OID as a result of Edison International's deferral of
interest payments, a holder's adjusted tax basis in the Series A QUIPS
generally will be its initial purchase price, increased by OID previously
includible in such United States Holder's gross income to the date of
disposition and decreased by distributions or other payments received on the
Series A QUIPS from, and including, the date of the first Extension Period.
This gain or loss generally will be a capital gain or loss, except to the
extent any amount realized is treated as a payment of accrued interest with
respect to such holder's pro rata share of the Series A QUIDS required to be
included in income, and generally will be long-term capital gain or loss if the
Series A QUIPS have been held for more than one year. Long-term capital gain of
a non-corporate holder is generally subject to a maximum tax rate of 20%.
If Edison International defers any interest payment on the Series A QUIDS,
the Series A QUIPS may trade at a price that does not fully reflect the value
of accrued but unpaid interest with respect to the Series A QUIDS. A holder who
sells its Series A QUIPS between record dates for payments of distributions
will be required to include accrued but unpaid interest on the Series A QUIDS
through the date of disposition as ordinary income and to add the amount of the
accrued but unpaid interest to its adjusted tax basis in the Series A QUIPS. To
the extent the selling price is less than the holder's adjusted tax basis, such
holder will recognize a capital loss. Subject to certain limited exceptions, a
holder cannot offset ordinary income against capital losses for U.S. federal
income tax purposes.
Backup Withholding Tax and Information Reporting for United States Holders
The amount of interest income paid and OID accrued on the Series A QUIPS
held of record by United States Holders, other than corporations and other
exempt United States Holders, will be reported to the IRS. "Backup" withholding
at a rate of 31% will apply to payments of interest to a non-exempt United
States Holder unless the United States Holder furnishes its taxpayer
identification number in the manner prescribed in applicable Treasury
regulations, certifies that such number is correct, certifies as to no loss of
exemption from backup withholding and meets certain other conditions.
Payment of the proceeds from the disposition of Series A QUIPS to or
through the U.S. office of a broker is subject to information reporting and
backup withholding unless the holder establishes an exemption from information
reporting and backup withholding.
Any amounts withheld from a holder under the backup withholding rules will
be allowed as a refund or a credit against such holder's U.S. federal income
tax liability, provided the required information is furnished to the IRS.
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It is anticipated that income on the Series A QUIPS will be reported to
holders on Form 1099, and mailed to holders of the Series A QUIPS by January 31
following each calendar year.
Possible Tax Law Changes
You should be aware that legislation has been proposed by the Clinton
Administration in the past that, if enacted, would have denied an interest
expense deduction to issuers of instruments such as the Series A QUIDS. While
legislation of that kind is not currently pending, we can give no assurance
that similar legislation will not ultimately be enacted into law, or that other
developments will not occur on or after the date of this prospectus supplement
that would adversely affect the tax treatment of the Series A QUIDS or the
Trust. Changes of that kind also could give rise to a Tax Event.
Non-United States Holders
A "Non-United States Holder" is a person who is not a United States Holder.
Please note that if you pay federal income tax on a net basis on income or gain
with respect to the Series A QUIPS because such income or gain is effectively
connected with the conduct of a United States trade or business, this
disclosure does not cover the United States federal tax rules that apply to
you.
Payments by the Trust to any holder of Series A QUIPS who or which is a
Non-United States Holder will generally not be subject to U.S. federal income
tax or withholding tax, provided that:
(1) the beneficial owner of the Series A QUIPS does not actually or
constructively own 10 percent or more of the total combined voting
power of all classes of voting stock of Edison International,
(2) the beneficial owner of the Series A QUIPS is not a controlled
foreign corporation that is related to Edison International through
stock ownership, and
(3) either (A) the beneficial owner of the Series A QUIPS certifies to
the Trust, under penalty of perjury, that it is not a United States
Holder and provides its name and address on a Form W-8 or suitable
substitute form, or (B) a securities clearing organization, bank or
other financial institution that holds customers' securities in the
ordinary course of its trade or business, and holds the Series A
QUIPS in such capacity, certifies to the Trust, under penalty of
perjury, that it has received such statement from the beneficial
owner or from another entity described in B between it and the
beneficial owner and furnishes the Trust with a copy thereof.
A Non-United States Holder of a Series A QUIPS will generally not be
subject to U.S. federal income tax or withholding tax on any gain realized upon
the sale, redemption, retirement, or other disposition of a Series A QUIPS
(other than gain attributable to accrued interest, which is addressed in the
preceding paragraph) unless:
(1) the Non-United States Holder is an individual who is present in the
U.S. for 183 days or more during the taxable year and meets certain
other conditions; or
(2) the Non-United States Holder is subject to tax under provisions of
U.S. tax law applicable to U.S. expatriates, including former
citizens or residents of the United States.
Treasury regulations that are generally effective with respect to payments
after December 31, 2000, would provide alternative methods for satisfying the
certification requirement described in clauses (3)(A) and (3)(B) above. Such
regulations also would require, in the case of Series A QUIPS held by a foreign
partnership, that:
. the certification described in clause (3) above be provided by the
partners rather than by the foreign partnership, and
S-31
<PAGE>
. the partnership provides certain information, including a U.S. taxpayer
identification number.
A look-through rule would apply in the case of tiered partnerships.
Backup Withholding and Information Reporting for Non-United States Holders
If a Non-United States Holder receives payments of interest or principal
directly from us or through the United States office of a custodian, nominee,
agent or broker, there is the possibility that both backup withholding at a
rate of 31% and information reporting will apply to such payments. With respect
to interest payments made on the Series A QUIPS, however, backup withholding
and information reporting will not apply if you certify, generally on a Form W-
8 or substitute form, that you are not a United States person for United States
federal income tax purposes.
Moreover, backup withholding or information reporting generally will not
apply to proceeds received on the sale, exchange, redemption, or other
disposition of the Series A QUIPS, if a Non-United States Holders properly
provides, generally on Form W-8 or a substitute form, a statement that he or
she is an "exempt foreign person" for purposes of the broker reporting rules
and other required information. If a Non-United States Holder is not required
to pay United States federal income or withholding tax on the sale or other
disposition of the Series A QUIPS, as described above under "Non-United States
Holders," he or she will generally qualify as an "exempt foreign person" for
purposes of the broker reporting rules.
If payments of principal and interest are made to a Non-United States
Holder outside the United States by or through the foreign office of its
foreign custodian, nominee or other agent, or if such Non-United States Holder
receives the proceeds of the sale of the Series A QUIPS through a foreign
office of a "broker," as defined in the pertinent Treasury regulations, backup
withholding or information reporting will generally not apply to such payments.
Backup withholding and information reporting will apply, however, if the
foreign custodian, nominee, agent or broker has actual knowledge or reason to
know that the payee is a United States person. Information reporting, but not
backup withholding, will apply to payments if the payment is made by a foreign
office of a custodian, nominee, agent or broker that is a United States person
or a controlled foreign corporation for United States federal income tax
purposes, or that derives 50% or more of its gross income from the conduct of a
United States trade or business for a specified three year period, unless the
broker has in its records documentary evidence that you are a Non-United States
Holder and other conditions specified in the Code are met.
Any amounts withheld under the backup withholding rules may be refunded or
credited against the Non-United States Holder's United States federal income
tax liability, provided the required information is furnished to the IRS.
New Backup Withholding Regulations
New regulations relating to withholding tax on income paid to foreign
persons will generally be effective for payments made after December 31, 2000,
subject to some transition rules. The new withholding regulations modify and,
in general, unify the way in which a Non-United States Holder establishes its
status as a Non-United States "beneficial owner" eligible for withholding
exemptions including the portfolio interest exemption, a reduced treaty rate or
an exemption from backup withholding. For example, the new regulations will
require new forms, which you will generally have to provide earlier than you
would have had to provide replacements for expiring existing forms.
The new withholding regulations clarify withholding agents' reliance
standards. They also require additional certifications for claiming treaty
benefits. The new withholding regulations also provide somewhat different
procedures for foreign intermediaries and flow-through entities, such as
foreign partnerships, to claim the benefit of applicable exemptions on behalf
of non-United States
S-32
<PAGE>
beneficial owners for which or for whom they receive payments. The new
withholding regulations also amend the foreign broker office definition as it
applies to partnerships.
When a Non-United States Holder purchases the Series A QUIPS, he or she
will be required to submit certification that complies with the temporary
Treasury regulations in order to obtain an available exemption from or
reduction in withholding tax. The new withholding regulations provide that
certifications satisfying the requirements of the new withholding regulations
will be deemed to satisfy the requirement of the Treasury regulations now in
effect. In any case, the Non-United States Holder must provide certifications
that comply with the provisions of the new withholding regulations, where
required, not later than December 31, 2000, if the United States Holder remains
as a holder on such date, unless the Non-United States Holder receives payments
on the Series A QUIPS through a qualified intermediary, as defined in the new
withholding regulations, that has provided a proper certification on the Non-
United States Holder's behalf. If the Non-United States Holder is claiming a
benefit under an income tax treaty and not relying on the portfolio interest
exemption, such holder should be aware that he or she may be required to obtain
a taxpayer identification number and to certify your eligibility under the
applicable treaty's limitations on benefits article in order to comply with the
new withholding regulations' certification requirements.
The new withholding regulations are complex and this summary does not
completely describe them. Please consult your tax advisor to determine how the
new withholding regulations will affect your particular circumstances.
S-33
<PAGE>
UNDERWRITING
Edison International, the Trust and the underwriters for the offering (the
"Underwriters") named below have entered into an underwriting agreement with
respect to the Series A QUIPS being offered. Subject to certain conditions,
each Underwriter has severally agreed to purchase the number of Series A QUIPS
indicated in the following table. Goldman, Sachs & Co. and are the
representatives of the Underwriters.
<TABLE>
<CAPTION>
Number of
Underwriter Series A QUIPS
----------- --------------
<S> <C>
Goldman, Sachs & Co........................................
---
Total....................................................
===
</TABLE>
If the Underwriters sell more Series A QUIPS than the total number set
forth in the table above, the Underwriters have an option to buy up to an
additional Series A QUIPS from the Trust to cover such sales. They may
exercise that option for 30 days. If any Series A QUIPS are purchased pursuant
to this option, the Underwriters will severally purchase Series A QUIPS in
approximately the same proportion as set forth in the table above.
Because the Trust will invest the proceeds from the sale of the Series A
QUIPS in the Series A QUIDS issued by Edison International, the underwriting
agreement provides that Edison International will pay underwriting commissions
to the Underwriters, as compensation. The following table shows the per Series
A QUIPS and total underwriting commissions to be paid to the Underwriters by
Edison International. Such amounts are shown assuming both no exercise and full
exercise of the Underwriters' option to purchase additional Series A
QUIPS.
<TABLE>
<CAPTION>
Paid by
Edison International
-------------------------
No Exercise Full Exercise
----------- -------------
<S> <C> <C>
Per Series A QUIPS.................................... $ $
Total................................................. $ $
</TABLE>
The Underwriters propose to offer the Series A QUIPS to the public
initially at the initial public offering price set forth on the cover page of
this prospectus supplement. Any Series A QUIPS sold by the Underwriters to
securities dealers may be sold at a discount of up to $ per Series A QUIPS
from the initial public offering price. Any of those securities dealers may
resell the Series A QUIPS they purchase from the Underwriters to other brokers
and dealers at a discount of up to $ per Series A QUIPS from the initial
public offering price. If all the Series A QUIPS are not sold at the initial
public offering price, the representatives of the Underwriters may change the
offering price and other selling terms.
Edison International and the Trust have agreed with the Underwriters,
during the period beginning from the date of the underwriting agreement and
continuing to and including the earlier of (i) the termination of trading
restrictions on the Series A QUIPS, as determined by the representatives of the
Underwriters, and (ii) 30 days after the last Time of Delivery (as defined in
the underwriting agreement), not to offer, sell, contract to sell or otherwise
dispose of any preferred securities, any other beneficial interests in the
assets of any trust, or any preferred securities or any other securities of any
trust or Edison International, as the case may be, that are substantially
similar to the Series A QUIPS (including any guarantee of such securities) or
any securities that are convertible into or exchangeable for, or that represent
the right to receive, preferred securities or any such substantially similar
securities of any trust or Edison International, or any debt securities of
S-34
<PAGE>
Edison International which mature more than one year after such Time of
Delivery and which are substantially similar to the Series A QUIPS, without the
prior written consent of the representatives of the Underwriters.
Prior to this offering, there has been no public market for the Series A
QUIPS. Edison International and the Trust have applied for listing the Series A
QUIPS on the New York Stock Exchange. If approved, trading in the Series A
QUIPS on the New York Stock Exchange is expected to begin within the 30-day
period after the initial delivery of the Series A QUIPS. In order to meet one
of the requirements for listing the Series A QUIPS, the Underwriters have
undertaken to sell the Series A QUIPS to a minimum of 400 beneficial owners.
The representatives of the Underwriters have advised Edison International and
the Trust that they intend to make a market in the Series A QUIPS prior to the
commencement of trading on the New York Stock Exchange, but are not obligated
to do so and may discontinue market making at any time without notice. No
assurance can be given as to the liquidity of the trading market for the Series
A QUIPS.
In connection with the offering, the Underwriters may purchase and sell the
Series A QUIPS in the open market. These transactions may include short sales,
stabilizing transactions and purchases to cover positions created by short
sales. Short sales involve the sale by the Underwriters of a greater number of
Series A QUIPS than they are required to purchase in the offering. Stabilizing
transactions consist of certain bids or purchases made for the purpose of
preventing or retarding a decline in the market price of the Series A QUIPS
while the offering is in progress.
The Underwriters also may impose a penalty bid. This occurs when a
particular Underwriter repays to the Underwriters a portion of the underwriting
commissions received by it because the Underwriters have repurchased Series A
QUIPS sold by or for the account of such Underwriter in stabilizing or short
covering transactions.
These activities by the Underwriters may stabilize, maintain or otherwise
affect the market place of the Series A QUIPS. As a result, the price of the
Series A QUIPS may be higher than the price that otherwise might exist in the
open market. If these activities are commenced, they may be discontinued by the
Underwriters at any time. These transactions may be effected on the New York
Stock Exchange, in the over-the-counter market or otherwise.
Edison International estimates that its share of the total expenses of this
offering, excluding underwriting discounts and commissions, will be
approximately $ .
Edison International and the Trust have agreed to indemnify the several
Underwriters against specified liabilities, including liabilities under the
Securities Act of 1933, as amended, and to contribute to amounts paid by the
Underwriters if the indemnification provided is unavailable or insufficient.
Certain of the Underwriters or their affiliates have provided from time to
time, and expect to provide in the future, investment or commercial banking
services to Edison International and its affiliates, for which such
Underwriters or their affiliates have received or will receive customary fees
and commissions.
S-35
<PAGE>
VALIDITY OF SERIES A QUIPS, SERIES A QUIDS AND SERIES A QUIPS GUARANTEE
Matters of Delaware law relating to the validity of the Series A QUIPS will
be passed upon on behalf of Edison International and the Trust by Richards,
Layton & Finger P.A., Wilmington, Delaware, special Delaware counsel to Edison
International and the Trust. The validity of the Series A QUIDS and the Series
A QUIPS Guarantee will be passed upon on behalf of Edison International by
Kenneth S. Stewart, Assistant General Counsel of Edison International. Latham &
Watkins, Los Angeles, California will pass upon matters relating to United
States federal income tax considerations. Certain legal matters will be passed
upon for the Underwriters by Cleary, Gottlieb, Steen & Hamilton, New York, New
York.
S-36
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, Dated July 2, 1999
PROSPECTUS
$2,500,000,000
Edison International
Debt Securities, Common Stock, Preferred Stock and Guarantees
EIX Trust I
EIX Trust II
EIX Trust III
Preferred Securities Guaranteed by Edison International
------------
We may offer and sell the securities from time to time in one or more
offerings. This prospectus provides you with a general description of the
securities we may offer.
Each time we sell securities we will provide a supplement to this prospectus
that contains specific information about the offering and the terms of the
securities. The supplement may also add, update or change information contained
in this prospectus. You should carefully read this prospectus and any
supplement before you invest in any of our securities.
Edison International
Edison International may offer and sell the following securities:
. debt securities
. common stock
. preferred stock
. guarantees of preferred securities
The Trusts
EIX Trust I, EIX Trust II and EIX Trust III may offer and sell preferred
securities, guaranteed by Edison International.
------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About This Prospectus..................................................... 3
Forward-looking Statements................................................ 3
Where You Can Find More Information....................................... 4
Edison International...................................................... 5
The Trusts................................................................ 6
Use of Proceeds........................................................... 7
Ratio of Edison International Earnings to Fixed Charges and Preferred
Stock Dividends.......................................................... 7
Description of Securities................................................. 8
Description of Debt Securities............................................ 8
Description of Edison International's Common Stock and Preferred Stock.... 17
Description of Preferred Securities....................................... 20
Description of Preferred Securities Guarantees............................ 27
Description of Expense Agreements......................................... 29
Relationship Among Preferred Securities, Preferred Securities Guarantees
and Subordinated Debt Securities Held By Each Trust...................... 29
Experts................................................................... 30
Validity of the Securities and the Guarantees............................. 30
Plan of Distribution...................................................... 30
</TABLE>
2
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement that we filed
with the United States Securities and Exchange Commission, or the "SEC." By
using a shelf registration statement, we may sell up to $2,500,000,000 offering
price of any combination of the securities described in this prospectus from
time to time and in one or more offerings. This prospectus only provides you
with a general description of the securities that we may offer. Each time we
sell securities, we will provide a supplement to this prospectus that contains
specific information about the terms of the securities. The supplement may also
add, update or change information contained in this prospectus. Before
purchasing any securities, you should carefully read both this prospectus and
any supplement, together with the additional information described under the
heading "Where You Can Find More Information."
This prospectus does not contain separate financial statements for the
trusts. Edison International files consolidated financial information with the
SEC that includes each of the trusts. The trusts do not have any independent
function other than to issue securities and to purchase subordinated debt
securities from Edison International. We do not believe that additional
financial information regarding the trusts would be useful to you.
You should rely only on the information contained or incorporated by
reference in this prospectus and in any supplement. We have not authorized any
other person to provide you with different information. If anyone provides you
with different or inconsistent information, you should not rely on it. We will
not make an offer to sell these securities in any jurisdiction where the offer
or sale is not permitted. You should assume that the information appearing in
this prospectus and the supplement to this prospectus is accurate as of the
dates on their covers. Our business, financial condition, results of operations
and prospects may have changed since that date.
FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the additional
information described under the heading "Where You Can Find More Information"
may contain forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. These statements are subject to risks
and uncertainties and are based on the beliefs and assumptions of our
management, based on information currently available to our management. When we
use words such as "believes," "expects," "anticipates," "intends," "plans,"
"estimates," "should" or similar expressions, we are making forward-looking
statements. Forward-looking statements include the information concerning
possible or assumed future results of operations set forth under "Business" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" in our Annual Report on Form 10-K, under the same or similar
headings in our Quarterly Reports on Form 10-Q, and in our Current Reports on
Form 8-K, incorporated by reference into this prospectus.
Forward-looking statements are not guarantees of performance. They involve
risks, uncertainties and assumptions. Our future results and shareholder value
may differ materially from those expressed in these forward-looking statements.
Many of the factors that will determine these results and value are beyond our
ability to control or predict. These statements are necessarily based upon
various assumptions involving judgments with respect to the future including,
among others, our ability to achieve synergies and revenue growth, national,
international, regional and local economic, competitive and regulatory
conditions and developments, technological developments, capital market
conditions, inflation rates, foreign currency exchange rates and valuations,
interest rates, energy markets, weather conditions, business and regulatory or
legal decisions, the pace of deregulation of retail natural gas and
electricity, the timing and extent of changes in commodity prices for oil,
natural gas and electricity, the timing and success of business development
efforts, new or increased
3
<PAGE>
environmental liabilities, the effects of Year 2000-related computer problems,
and other uncertainties, all of which are difficult to predict and many of
which are beyond our control. You are cautioned not to put undue reliance on
any forward-looking statements. For those statements, we claim the protection
of the safe harbor for forward-looking statements contained in the Private
Securities Litigation Reform Act of 1995.
You should also consider any other factors contained in this prospectus or
in any accompanying supplement, including the information incorporated by
reference into this prospectus or into any accompanying supplement.
WHERE YOU CAN FIND MORE INFORMATION
Available Information
Edison International files reports, proxy statements and other information
with the SEC. Information filed with the SEC by Edison International can be
inspected and copied at the Public Reference Room maintained by the SEC and at
the Regional Offices of the SEC as follows:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-
2551
You may also obtain copies of this information by mail from the Public
Reference Section of the SEC, 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, at prescribed rates. Further information on the operation of the
SEC's Public Reference Room in Washington, D.C. can be obtained by calling the
SEC at 1-800-SEC-0330.
The SEC also maintains a web site that contains reports, proxy statements
and other information about issuers, such as Edison International, who file
electronically with the SEC. The address of that site is http://www.sec.gov.
Edison International's common stock is listed on the New York Stock
Exchange (NYSE: EIX), and reports, proxy statements and other information
concerning Edison International can also be inspected at the offices of the
New York Stock Exchange at 20 Broad Street, New York, New York 10005. In
addition, reports, proxy statements and other information concerning Edison
International can be inspected at its offices at 2244 Walnut Grove Avenue,
Rosemead, California 91770. You also can obtain copies of some of the above
reports and other information at the web site maintained by Edison
International. The address of that web site is http://www.edison.com.
This prospectus is part of a registration statement that we filed with the
SEC. The full registration statement may be obtained from the SEC or Edison
International, as indicated below. Forms of the indentures, the trust
agreements and other documents establishing the terms of the offered
securities and the guarantees are filed as exhibits to the registration
statement. Statements in this prospectus about these documents are summaries.
You should refer to the actual documents for a more complete description of
the relevant matters.
Incorporation by Reference
The rules of the SEC allow us to "incorporate by reference" information
into this prospectus, which means that we can disclose important information
to you by referring you to another document filed separately with the SEC. The
information incorporated by reference is deemed to be part of this prospectus,
and later information that we file with the SEC will automatically update and
supersede that information. The prospectus incorporates by reference the
documents set forth below that we have previously filed with the SEC. These
documents contain important information about Edison International.
4
<PAGE>
<TABLE>
<CAPTION>
Sec Filings (File No. 1-9936) Period
----------------------------- ------
<S> <C>
Annual Report on Form 10-K Year ended December 31, 1998
Quarterly Report on Form 10-Q Quarter ended March 31, 1999
Current Report on Form 8-K Filed April 5, 1999
Registration Statement on Form 8-A Filed November 21, 1996
The "Description of Registrant's Filed by SCEcorp (former name of Edison
Securities to be Registered" on International) on May 20, 1988
pages 4-5 of the Registration
Statement on Form 8-B
</TABLE>
We are also incorporating by reference all additional documents that we file
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, between the date of this prospectus and the
termination of the offering of securities described in this prospectus.
Upon request, Edison International will provide without charge to each
person to whom a copy of this prospectus has been delivered a copy of any and
all of these filings. You may request a copy of these filings by writing or
telephoning us at:
Edison International
2244 Walnut Grove Avenue
(P.O. Box 999)
Rosemead, California 91770
Attention: Corporate Governance
Telephone: (626) 302-2662
EDISON INTERNATIONAL
Edison International was incorporated on April 20, 1987, under the laws of
the State of California for the purpose of becoming the parent holding company
of Southern California Edison Company, a California public utility corporation.
As of December 31, 1998, Edison International directly or indirectly owned all
of the issued and outstanding common stock of Southern California Edison
Company and of other subsidiaries engaged in nonutility businesses. These
nonutility subsidiaries are:
. Edison Mission Energy, which is engaged in developing, acquiring,
owning, and operating electric power generation facilities worldwide.
. Edison Capital, a provider of capital and financial services for energy
and infrastructure projects.
. Mission Land Company, which is in the business of managing and selling
real estate projects.
. Edison Enterprises, which provides integrated energy services, utility
outsourcing, and consumer products and services.
Edison International is engaged in the business of holding, for investment,
the stock of its subsidiaries. Edison International may, in the future, engage
in other businesses. At year-end 1998, Southern California Edison Company had
13,177 full-time employees. Edison International had 20 full-time employees,
Edison Mission Energy had 1,180 full-time employees, Edison Capital had
85 full-time employees, and Edison Enterprises had 3,888 full-time employees.
The information above concerning Edison International and its subsidiaries
is only a summary and does not purport to be comprehensive. For additional
information concerning Edison International
5
<PAGE>
and its subsidiaries, you should refer to the information described in "Where
You Can Find More Information."
The principal executive offices of Edison International are located at 2244
Walnut Grove Avenue, Rosemead, California 91770, and its telephone number is
(626) 302-2222.
THE TRUSTS
Edison International created three Delaware business trusts pursuant to
three trust agreements. The trusts are named EIX Trust I, EIX Trust II and EIX
Trust III. Edison International will enter into an amended and restated trust
agreement (a "Trust Agreement") for each trust, which will state the terms and
conditions for each trust to issue and sell its preferred securities and common
securities. A form of Trust Agreement is filed as an exhibit to the
registration statement of which this prospectus forms a part.
Each trust will exist solely to:
. issue and sell its preferred securities (representing undivided
beneficial interests in the assets of the trust) to the public;
. issue and sell its common securities (representing undivided beneficial
interests in the assets of the trust) to Edison International;
. use the proceeds from the sale of its preferred and common securities to
purchase a series of Edison International's subordinated debt
securities;
. distribute the cash payments it receives on the subordinated debt
securities it owns to the holders of the preferred and common
securities; and
. engage in other activities that are necessary or incidental to these
purposes.
Edison International will purchase all of the common securities of each
trust. The common securities will represent an aggregate liquidation amount
equal to at least 3% of each trust's total capitalization. The preferred
securities will represent the remaining 97% of the trust's total
capitalization. The common securities will have terms substantially identical
to, and will rank equal in priority of payment with, the preferred securities.
However, if Edison International defaults on the related subordinated debt
securities, then cash distributions and liquidation, redemption and other
amounts payable on the common securities will be subordinate in priority of
payment to such amounts payable on the preferred securities.
The preferred securities will be guaranteed by Edison International as
described later in this prospectus.
Edison International has appointed five trustees to conduct each trust's
business and affairs:
. The Chase Manhattan Bank ("property trustee");
. Chase Manhattan Bank Delaware ("Delaware trustee"); and
. Three Edison International officers ("regular trustees").
Except under certain limited circumstances, only Edison International can
remove or replace the trustees. In addition, Edison International can increase
or decrease the number of trustees.
Edison International will pay all fees and expenses related to each trust
and each offering of the related preferred securities and will pay all ongoing
costs and expenses of each trust, except the respective trust's obligations
under the related preferred and common securities.
6
<PAGE>
The trusts will not have separate financial statements. The statements would
not be material to holders of the preferred securities because no trust will
have any independent operations. Each trust exists solely for the reasons
summarized above.
The principal offices of each trust will be located at 2244 Walnut Grove
Avenue, Rosemead, California 91770, and the telephone number of each trust will
be (626) 302-1930.
USE OF PROCEEDS
Unless stated otherwise in the applicable prospectus supplement, the net
proceeds from the sale of the offered securities will be:
. used by Edison International and/or its subsidiaries for general corporate
purposes, including investing in nonutility business activities and reducing
short-term debt incurred to provide interim financing for such purposes; and
. used by the respective trusts to purchase subordinated debt securities of
Edison International.
RATIO OF EDISON INTERNATIONAL EARNINGS TO FIXED CHARGES AND PREFERRED STOCK
DIVIDENDS
The following table sets forth the ratio of Edison International earnings to
combined fixed charges and preferred stock dividends for Edison International
for each of the five years in the five-year period ended December 31, 1998:
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends........................... 2.48 2.55 2.40 2.39 2.31
Adjusted Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends (1)................... NA NA NA 2.40 2.60
</TABLE>
(1) The following effects of rate reduction notes are excluded from the
adjusted ratios for 1997 and 1998:
<TABLE>
<CAPTION>
1997 1998
---------- ------------
<S> <C> <C>
Income before interest expense...................... $8,142,000 $149,486,000
Interest expense.................................... 8,142,000 149,486,000
</TABLE>
SCE Funding LLC, a special purpose entity, of which Southern California
Edison Company is the sole member, issued approximately $2.5 billion of
these notes in December 1997. For further details you should refer to the
information described in "Where You Can Find More Information" in the
Prospectus, particularly page 46 of Edison International's 1998 Annual
Report to Shareholders.
7
<PAGE>
DESCRIPTION OF SECURITIES
The following is a general description of the terms and provisions of the
securities we may offer and sell by this prospectus. These summaries are not
meant to be a complete description of each security. This prospectus and any
accompanying prospectus supplement will contain the material terms and
conditions for each security. The prospectus supplement may add, update or
change the terms and conditions of the securities as described in this
prospectus. For more information about the securities offered by us, please
refer to:
. the indenture between Edison International and Harris Trust and Savings
Bank, as trustee, relating to the issuance of each series of senior debt
securities by Edison International;
. the indenture ("subordinated indenture") between Edison International
and The Chase Manhattan Bank, as trustee, relating to the issuance of
each series of subordinated debt securities by Edison International;
. the Trust Agreement of each trust; and
. the guarantee agreement between Edison International and The Chase
Manhattan Bank, as trustee, relating to Edison International's guarantee
of the preferred securities issued by each trust.
Forms of these documents are filed as exhibits to the registration
statement. The indentures listed above are sometimes collectively referred to
as the "indentures" and individually referred to as an "indenture." The trustee
under each indenture is referred to as the "indenture trustee." The indentures
are subject to and governed by the Trust Indenture Act of 1939, and may be
supplemented or amended from time to time following their execution.
DESCRIPTION OF DEBT SECURITIES
The following description discusses the general terms and provisions of the
debt securities that Edison International may offer by this prospectus. The
debt securities may be issued as senior debt securities or subordinated debt
securities. Any subordinated debt securities issued by Edison International
will be purchased by a trust and correspond to the series of preferred
securities issued by the trust. The indebtedness represented by the senior debt
securities will rank equally with all other unsecured and unsubordinated debt
of Edison International. The indebtedness represented by the subordinated debt
securities will rank junior and be subordinate in right of payment to the prior
payment in full of the senior debt of Edison International, to the extent and
in the manner set forth in the prospectus supplement for the securities. See
"--Subordination" below.
Each indenture gives us broad authority to set the particular terms of each
series of debt securities, including the right to modify certain of the terms
contained in the indenture. The particular terms of a series of debt securities
and the extent, if any, to which the particular terms of the issue modify the
terms of the indenture will be described in the prospectus supplement relating
to the debt securities.
Each indenture contains the full legal text of the matters described in this
section. Because this section is a summary, it does not describe every aspect
of the debt securities or the applicable indenture. This summary is subject to
and qualified in its entirety by reference to all the provisions of the
applicable indenture, including definitions of terms used in the indenture. We
also include references in parentheses to certain sections of the indentures.
Whenever we refer to particular sections or defined terms of the indentures in
this prospectus or in a prospectus supplement, these sections or defined terms
are incorporated by reference herein or in the prospectus supplement. This
summary also is subject to and qualified by reference to the description of the
particular terms of the debt securities in the applicable prospectus
supplement.
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General
We may issue an unlimited amount of debt securities under each indenture in
one or more series. We need not issue all debt securities of one series at the
same time and, unless otherwise provided, we may reopen a series, without the
consent of the holders of the debt securities of that series, for issuances of
additional debt securities of that series.
The debt securities will be unsecured obligations.
Prior to the issuance of each series of debt securities, the terms of the
particular securities will be specified in a supplemental indenture (including
any pricing supplement) and a board resolution of Edison International or in
one or more officer's certificates of Edison International pursuant to a
supplemental indenture or a board resolution. We refer you to the applicable
prospectus supplement for a description of the following terms of the series of
debt securities:
(a) the title of the debt securities;
(b) any limit upon the principal amount of the debt securities;
(c) the date or dates on which principal will be payable or how to
determine the dates;
(d) the rate or rates or method of determination of interest; the date
from which interest will accrue; the dates on which interest will be
payable, which we refer to as the "interest payment dates;" and any record
dates for the interest payable on the interest payment dates;
(e) any obligation or option of Edison International to redeem, purchase
or repay debt securities, or any option of the registered holder to require
Edison International to redeem or repurchase debt securities, and the terms
and conditions upon which the debt securities will be redeemed, purchased
or repaid;
(f) the denominations in which the debt securities will be issuable (if
other than denominations of $1,000 and any integral multiple thereof);
(g) any provision relating to deferral of interest payments;
(h) whether the debt securities are to be issued in whole or in part in
the form of one or more global debt securities and, if so, the identity of
the depositary for the global debt securities; and
(i) any other terms of the debt securities.
(See Section 301.)
Payment of Debt Securities--Interest
Unless indicated differently in a prospectus supplement, we will pay
interest on the debt security on each interest payment date to the person in
whose name the debt security is registered as of the close of business on the
regular record date relating to the interest payment date.
However, if we default in paying interest on a debt security, we will pay
defaulted interest in either of the two following ways:
(a) We will first propose to the indenture trustee a payment date for
the defaulted interest. Next, the indenture trustee will choose a special
record date for determining which registered holders are entitled to the
payment. The special record date will be between 10 and 15 days before the
payment date we propose. Finally, we will pay the defaulted interest on the
payment date to the registered holder of the debt security as of the close
of business on the special record date.
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(b) Alternatively, we can propose to the indenture trustee any other
lawful manner of payment that is consistent with the requirements of any
securities exchange on which the debt securities are listed for trading. If
the indenture trustee thinks the proposal is practicable, payment will be
made as proposed.
(See Section 307.)
Payment of Debt Securities--Principal
Unless we indicate differently in a prospectus supplement, we will pay
principal of and any premium on the debt securities at stated maturity, upon
redemption or otherwise, upon presentation of the debt securities at the office
of the indenture trustee, as our paying agent. Any other paying agent initially
designated for the debt securities of a particular series will be named in the
applicable prospectus supplement.
In our discretion, we may change the place of payment on the debt
securities, and may remove any paying agent and may appoint one or more
additional paying agents. (See Section 1002.)
Form; Transfers; Exchanges
The debt securities will be issued
(a) only in fully registered form;
(b) without interest coupons; and
(c) unless otherwise specified in a prospectus supplement, in
denominations that are integral multiples of $1,000.
You may have your debt securities divided into debt securities of smaller
denominations (of at least $1,000) or combined into debt securities of larger
denominations, as long as the total principal amount is not changed. This is
called an "exchange."
You may exchange or transfer debt securities at the office of the indenture
trustee. The indenture trustee acts as our agent for registering debt
securities in the names of holders and transferring debt securities. We may
appoint another agent or act as our own agent for this purpose. The entity
performing the role of maintaining the list of registered holders is called the
"security registrar." It will also perform transfers.
In our discretion, we may change the place for registration of transfer of
the debt securities and may remove and/or appoint one or more additional
security registrars. (See Sections 305 and 1002.)
Except as otherwise provided in a prospectus supplement, there will be no
service charge for any transfer or exchange of the debt securities, but you may
be required to pay a sum sufficient to cover any tax or other governmental
charge payable in connection with the transfer or exchange. We may block the
transfer or exchange of (a) debt securities during a period of 15 days prior to
giving any notice of redemption or (b) any debt security selected for
redemption in whole or in part, except the unredeemed portion of any debt
security being redeemed in part. (See Section 305.)
Redemption
We will set forth any terms for the redemption of debt securities in a
prospectus supplement. Unless we indicate differently in a prospectus
supplement, and except with respect to debt securities redeemable at the option
of the registered holder, debt securities will be redeemable upon notice by
mail between 30 and 60 days prior to the redemption date. If less than all of
the debt securities of any series or any tranche of a series are to be
redeemed, the indenture trustee will select the debt securities to be redeemed.
In the absence of any provision for selection, the indenture trustee will
choose a method of random selection it deems fair and appropriate. (See
Sections 1102, 1103 and 1104.)
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Debt securities will cease to bear interest on the redemption date. We will
pay the redemption price and any accrued interest once you surrender the debt
security for redemption. (See Section 1105.) If only part of a debt security is
redeemed, the indenture trustee will deliver to you a new debt security of the
same series for the remaining portion without charge. (Section 1106.)
We may make any redemption conditional upon the receipt by the paying agent,
on or prior to the date fixed for redemption, of money sufficient to pay the
redemption price. If the paying agent has not received the money by the date
fixed for redemption, we will not be required to redeem the debt securities.
(See Section 1104.)
Events of Default
An "event of default" occurs with respect to debt securities of any series
if:
(a) we do not pay any interest on any debt securities of the applicable
series within 30 days of the due date (following any deferral allowed under
the terms of the debt securities and elected by us);
(b) we do not pay principal or premium on any debt securities of the
applicable series on its due date;
(c) we remain in breach of a covenant or warranty (excluding covenants
and warranties not applicable to the affected series) of the indenture for
90 days after we receive a written notice of default stating we are in
breach and requiring remedy of the breach; the notice must be sent by
either the indenture trustee or registered holders of at least 25% of the
principal amount of debt securities of the affected series;
(d) we file for bankruptcy or other specified events in bankruptcy,
insolvency, receivership or reorganization occur; or
(e) any other event of default specified in the prospectus supplement
occurs.
(See Section 501.)
No event of default with respect to a series of debt securities necessarily
constitutes an event of default with respect to the debt securities of any
other series issued under the indenture.
Remedies
Acceleration
If an event of default occurs and is continuing with respect to any series
of debt securities, then either the indenture trustee or the registered holders
of not less than 25% in principal amount of the outstanding debt securities of
that series may declare the principal amount of all of the debt securities of
that series to be due and payable immediately. (See Section 502.)
Rescission of Acceleration
After the declaration of acceleration has been made and before the indenture
trustee has obtained a judgment or decree for payment of the money due on any
series of debt securities, the registered holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of that series
may rescind and annul the declaration and its consequences, if
(a) we pay or deposit with the indenture trustee a sum sufficient to pay
(1) all overdue interest;
(2) the principal of and any premium which have become due other
than by the declaration of acceleration and overdue interest on these
amounts;
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(3) interest on overdue interest to the extent lawful;
(4) all amounts due to the indenture trustee under the indenture; and
(b) all events of default with respect to the affected series, other
than the nonpayment of the principal which has become due solely by the
declaration of acceleration, have been cured or waived as provided in the
indenture.
(See Section 502.)
For more information as to waiver of defaults, see "Waiver of Default and
of Compliance" below.
Control by Registered Holders; Limitations
Subject to the indenture, if an event of default with respect to the debt
securities of any series occurs and is continuing, the registered holders of a
majority in principal amount of the outstanding debt securities of that series
will have the right to
(a) direct the time, method and place of conducting any proceeding for
any remedy available to the indenture trustee, or
(b) exercise any trust or power conferred on the indenture trustee with
respect to the debt securities of the series.
If an event of default is continuing with respect to all the series of debt
securities, the registered holders of a majority in aggregate principal amount
of the outstanding debt securities of all the series, considered as one class,
will have the right to make such direction, and not the registered holders of
the debt securities of any one of the series. These rights of registered
holders to make direction are subject to the following limitations:
(a) the registered holders' directions will not conflict with any law or
the indenture; and
(b) the registered holders' directions may not involve the indenture
trustee in personal liability where the indenture trustee believes
indemnity is not adequate.
The indenture trustee may also take any other action it deems proper which
is consistent with the registered holders' direction. (See Sections 512 and
603.)
In addition, the indenture provides that no registered holder of any debt
security of any series will have any right to institute any proceeding,
judicial or otherwise, with respect to the indenture for the appointment of a
receiver or for any other remedy under the indenture unless
(a) that registered holder has previously given the indenture trustee
written notice of a continuing event of default;
(b) the registered holders of not less than 25% in aggregate principal
amount of the outstanding debt securities of all the series, considered as
one class, or, in the case of an event of default of the character
specified above in clause (a) or (b) under "Events of Default," that
series, have made written request to the indenture trustee to institute
proceedings in respect of that event of default and have offered the
indenture trustee indemnity satisfactory to it against costs and
liabilities incurred in complying with the request; and
(c) for 60 days after receipt of the notice, the indenture trustee has
failed to institute a proceeding and no direction inconsistent with the
request has been given to the indenture trustee during the 60-day period by
the registered holders of a majority in aggregate principal amount of
outstanding debt securities of all the series, considered as one class, or,
in the case of an event of default of the character specified above in
clause (a) or (b) under "Events of Default," that series.
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Furthermore, no registered holder will be entitled to institute any action if
and to the extent that the action would disturb or prejudice the rights of
other registered holders. (See Sections 507 and 603.)
However, each registered holder has an absolute and unconditional right to
receive payment when due and to bring a suit to enforce that right. (See
Sections 507 and 508.)
Notice of Default
The indenture trustee is required to give the registered holders of the debt
securities notice of any default under the indenture to the extent required by
the Trust Indenture Act, unless the default has been cured or waived; except
that in the case of an event of default of the character specified above in
clause (c) under "Events of Default," no notice shall be given to the
registered holders until at least 30 days after the occurrence thereof. (See
Section 602.) The Trust Indenture Act currently permits the indenture trustee
to withhold notices of default (except for certain payment defaults) if the
indenture trustee in good faith determines the withholding of the notice to be
in the interests of the registered holders.
We will furnish the indenture trustee with an annual statement as to our
compliance with the conditions and covenants in the indenture. (See Section
1005.)
Waiver of Default and of Compliance
The registered holders of a majority in aggregate principal amount of the
outstanding debt securities of all affected series (voting as one class) may
waive, on behalf of the registered holders of all debt securities of all such
series, any past default under the indenture, except a default in the payment
of principal, premium or interest, or with respect to compliance with certain
provisions of the indenture that cannot be amended without the consent of the
registered holder of each outstanding debt security. (See Section 513.)
Compliance with some of the covenants in the indenture or otherwise provided
with respect to debt securities may be waived by the registered holders of a
majority in aggregate principal amount of the affected debt securities,
considered as one class. (See Section 1006.)
Consolidation, Merger and Conveyance of Assets as an Entirety; No Financial
Covenants
Subject to the provisions described in the next paragraph, Edison
International will preserve its corporate existence. (See Section 1004.)
Edison International has agreed not to consolidate with or merge into any
other entity and not to convey, transfer or lease its properties and assets
substantially as an entirety to any entity, unless:
(a) the entity formed by the consolidation or into which Edison
International is merged, or the entity which acquires or which leases the
property and assets of Edison International substantially as an entirety,
is an entity organized and existing under the laws of the United States of
America or any State of the United States or the District of Columbia, and
expressly assumes, by supplemental indenture, the due and punctual payment
of the principal, premium and interest on all the outstanding debt
securities and the performance of all of the covenants of Edison
International under the indenture, and
(b) immediately after giving effect to the transactions, no event of
default, and no event which after notice or lapse of time or both would
become an event of default, will have occurred and be continuing.
(See Section 801.)
The indenture contains no financial or other similar restrictive covenants.
Any such covenants with respect to any particular series of debt securities
will be set forth in the applicable prospectus supplement.
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Modification of Indenture
Without Registered Holder Consent. Without the consent of any registered
holders of debt securities, we and the applicable indenture trustee may enter
into one or more supplemental indentures for any of the following purposes:
(a) to evidence the succession of another entity to Edison
International; or
(b) to add one or more covenants of Edison International or other
provisions for the benefit of the registered holders of all or any series
or tranche of debt securities, or to surrender any right or power conferred
upon Edison International; or
(c) to add any additional events of default for all or any series of
debt securities; or
(d) to change or eliminate any provision of the indenture or to add any
new provision to the indenture that does not adversely affect the interests
of the registered holders; or
(e) to provide security for the debt securities of any series; or
(f) to establish the form or terms of debt securities of any series or
tranche or any debt securities guarantees as permitted by the indenture; or
(g) to provide for the issuance of bearer securities; or
(h) to evidence and provide for the acceptance of appointment of a
separate or successor indenture trustee; or
(i) to provide for the procedures required to permit the utilization of
a noncertificated system of registration for any series or tranche of debt
securities; or
(j) to change any place or places where
(1) we may pay principal, premium and interest,
(2) debt securities may be surrendered for transfer or exchange, or
(3) notices and demands to or upon Edison International may be
served; or
(k) to cure any ambiguity, defect or inconsistency or to make any other
changes that do not adversely affect the interests of the registered
holders in any material respect.
(See Section 901.)
If the Trust Indenture Act is amended after the date of the indenture so as
to require changes to the indenture or so as to permit changes to, or the
elimination of, provisions which, at the date of the indenture or at any time
thereafter, were required by the Trust Indenture Act to be contained in the
indenture, the indenture will be deemed to have been amended so as to conform
to the amendment or to effect the changes or elimination, and Edison
International and the applicable indenture trustee may, without the consent of
any registered holders, enter into one or more supplemental indentures to
effect or evidence the amendment.
With Registered Holder Consent. We and the indenture trustee may, with some
exceptions, amend or modify any indenture with the consent of the registered
holders of at least a majority in aggregate principal amount of the debt
securities of all series affected by the amendment or modification (voting as
one class). However, no amendment or modification may, without the consent of
the registered holder of each outstanding debt security affected thereby,
(a) change the stated maturity of the principal or interest on any debt
security (other than pursuant to the terms of the debt security), or reduce
the principal amount, interest or premium payable or change the currency in
which any debt security is payable, or impair the right to bring suit to
enforce any payment;
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(b) reduce the percentages of registered holders whose consent is
required for any supplemental indenture or waiver or reduce the
requirements for quorum and voting under the indenture; or
(c) modify certain of the provisions in the indenture relating to
supplemental indentures and waivers of certain covenants and past defaults.
A supplemental indenture which changes or eliminates any provision of the
indenture expressly included solely for the benefit of registered holders of
debt securities of one or more particular series or tranches will be deemed not
to affect the rights under the indenture of the registered holders of debt
securities of any other series or tranche. (See Section 902.)
Miscellaneous
The indenture provides that some debt securities, including those for which
payment or redemption money has been deposited or set aside in trust, will not
be deemed to be "outstanding" in determining whether the registered holders of
the requisite principal amount of the outstanding debt securities have given or
taken any demand, direction, consent or other action under the indenture as of
any date, or are present at a meeting of registered holders for quorum
purposes. (See Section 101.)
We will be entitled to set any day as a record date for the purpose of
determining the registered holders of outstanding debt securities of any series
entitled to give or take any demand, direction, consent or other action under
the indenture, in the manner and subject to the limitations provided in the
indenture. In some circumstances, the indenture trustee also will be entitled
to set a record date for action by registered holders. If a record date is set
for any action to be taken by registered holders of particular debt securities,
the action may be taken only by persons who are registered holders of the
respective debt securities on the record date. (See Section 104.)
Defeasance and Covenant Defeasance
The indentures provide, unless the terms of the particular series of debt
securities provide otherwise, that we may, upon satisfying several conditions,
cause ourselves to be:
(a) discharged from our obligations, with some exceptions, with respect
to any series of debt securities, which we refer to as "defeasance"; and
(b) released from our obligations under specified covenants with respect
to any series of debt securities, which we refer to as "covenant
defeasance."
One condition we must satisfy is the irrevocable deposit with the indenture
trustee, in trust, of money and/or government obligations which, through the
scheduled payment of principal and interest on those obligations, would provide
sufficient moneys to pay the principal of and any premium and interest on those
debt securities on the maturity dates of the payments or upon redemption.
The indentures permit defeasance with respect to any series of debt
securities even if a prior covenant defeasance has occurred with respect to the
debt securities of that series. Following a defeasance, payment of the debt
securities defeased may not be accelerated because of an event of default.
Following a covenant defeasance, payment of the debt securities may not be
accelerated by reference to the specified covenants affected by the covenant
defeasance. However, if an acceleration were to occur, the realizable value at
the acceleration date of the money and government obligations in the defeasance
trust could be less than the principal and interest then due on the respective
debt securities, since the required deposit in the defeasance trust would be
based upon scheduled cash flows rather than market value, which would vary
depending upon interest rates and other factors.
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Under current United States federal income tax law, the defeasance
contemplated in the preceding paragraphs would be treated as an exchange of the
relevant debt securities in which holders of the debt securities might
recognize gain or loss. In addition, the amount, timing and character of
amounts that holders would be required after the defeasance to include in
income might be different from that which would be includible in the absence of
the defeasance. Prospective investors are urged to consult their own tax
advisors as to the specific consequences of a defeasance, including the
applicability and effect of tax laws other than United States federal income
tax laws.
Under current United States federal income tax laws, unless accompanied by
other changes in the terms of the debt securities, covenant defeasance
generally should not be treated as a taxable exchange.
Resignation and Removal of the Indenture Trustee; Deemed Resignation
The indenture trustee may resign at any time by giving written notice to us.
The indenture trustee may also be removed by act of the registered holders
of a majority in principal amount of the then outstanding debt securities of
any series.
No resignation or removal of the indenture trustee and no appointment of a
successor indenture trustee will become effective until the acceptance of
appointment by a successor indenture trustee in accordance with the
requirements of the indenture.
Under some circumstances, we may appoint a successor indenture trustee and,
if the successor accepts, the indenture trustee will be deemed to have
resigned.
(Section 610).
Subordination
Unless we indicate differently in a prospectus supplement, any subordinated
debt securities will be subordinated in the following manner. If Edison
International's assets are distributed upon our dissolution, winding up,
liquidation or reorganization, the payment of the principal of, premium, if
any, and interest on any subordinated debt securities will be subordinated, to
the extent provided in the subordinated indenture and the applicable
supplemental indenture, to the prior payment in full of all senior
indebtedness, including senior debt securities. However, Edison International's
obligation to pay principal, and premium, if any, or interest on the
subordinated debt securities will not otherwise be affected. No payment on
account of principal, or premium, if any, sinking fund or interest may be made
on the subordinated debt securities at any time when there is a default in the
payment of principal, premium, if any, sinking fund or interest on senior
indebtedness. If, while Edison International is in default on senior
indebtedness, any payment is received by the indenture trustee under the
subordinated debt security indenture or the holders of any of the subordinated
debt securities before it has paid all senior indebtedness in full, the payment
or distribution must be paid over to the holders of the unpaid senior
indebtedness or applied to the repayment of the unpaid senior indebtedness.
Subject to paying the senior indebtedness in full, the holders of the
subordinated debt securities will be subrogated to the rights of the holders of
the senior indebtedness to the extent that payments are made to the holders of
senior indebtedness out of the distributive share of the subordinated debt
securities.
Due to the subordination, if Edison International's assets are distributed
upon insolvency, some or all of its general creditors may recover more,
ratably, than holders of subordinated debt securities. The subordinated
indenture or applicable supplemental indenture may state that its subordination
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provisions will not apply to money and securities held in trust under the
satisfaction and discharge, and the legal defeasance provisions of the
subordinated indenture.
If this prospectus is being delivered in connection with the offering of a
series of subordinated debt securities, the accompanying prospectus supplement
or the information incorporated by reference in it will set forth the
approximate amount of senior indebtedness outstanding as of a recent date.
Conversion Rights
The terms and conditions of any debt securities being offered that are
convertible into common stock of Edison International will be set forth in a
prospectus supplement. These terms will include the conversion price, the
conversion period, provisions as to whether conversion will be at the option of
the holder or us, the events requiring an adjustment of the conversion price
and provisions affecting conversion in the event that the debt securities are
redeemed.
Governing Law
The subordinated indenture and the related debt securities will be governed
by and construed in accordance with the laws of the State of California, except
that the rights, duties, immunities and indemnities of the indenture trustee
will be governed by the laws of the State of New York.
The senior indenture and the related debt securities will be governed by and
construed in accordance with the laws of the State of California.
DESCRIPTION OF EDISON INTERNATIONAL'S
COMMON STOCK AND PREFERRED STOCK
The following description of Edison International's common stock and
preferred stock is only a summary and is qualified in its entirety by reference
to the articles of incorporation and bylaws of Edison International. Therefore,
you should read carefully the more detailed provisions of Edison
International's Restated Articles of Incorporation, Edison International's
Amended Bylaws, and Edison International's Rights Agreement, dated November 21,
1996, between Edison International and Harris Trust Company of California, as
rights agent, copies of which are incorporated by reference as exhibits to the
registration statement of which this prospectus is a part.
General
The authorized capital stock of Edison International consists of (1)
800,000,000 shares of Edison International common stock, without par value, and
(2) 50,000,000 shares of preferred stock, without par value. As of March 31,
1999, there were issued and outstanding 347,207,697 shares of Edison
International common stock and no shares of Edison International preferred
stock. No other classes of capital stock are authorized under the Edison
International articles of incorporation. The issued and outstanding shares of
Edison International common stock are duly authorized, validly issued, fully
paid, nonassessable and free of preemptive rights.
Edison International Common Stock
The holders of Edison International common stock are entitled to receive
such dividends as the Edison International board of directors may from time to
time declare, subject to any rights of holders of outstanding shares of Edison
International preferred stock. Except as otherwise provided by law, each holder
of Edison International common stock is entitled to one vote per share on each
matter
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submitted to a vote of a meeting of shareholders, subject to any class or
series voting rights of holders of Edison International preferred stock.
In the event of any liquidation, dissolution or winding up of Edison
International, whether voluntary or involuntary, the holders of shares of
Edison International common stock, subject to any rights of the holders of
outstanding shares of Edison International preferred stock, are entitled to
receive any remaining assets of Edison International after the discharge of its
liabilities.
Holders of Edison International common stock are not entitled to preemptive
rights to subscribe for or purchase any part of any new or additional issue of
stock or securities convertible into stock. Edison International common stock
does not contain any redemption provisions or conversion rights and is not
liable to assessment or further call.
Each outstanding share of Edison International common stock is accompanied
by a right to purchase one one-thousandth of a share of Series A Junior
Participating Cumulative Preferred Stock, without par value, of Edison
International at a price of $55.00 per right, subject to certain anti-dilution
adjustments. The Edison International board of directors has reserved 3,000,000
shares of such Series A preferred stock for issuance upon exercise of the
rights, as more fully discussed below under the heading "--Description of
Preferred Share Purchase Rights."
The registrar and transfer agent for the Edison International common stock
is Southern California Edison Company.
Preferred Stock
The Edison International board of directors is authorized, pursuant to the
Edison International articles of incorporation, to issue up to 50,000,000
shares of Edison International preferred stock in one or more series and to fix
the number of shares of any series of preferred stock, to determine the
designation of any such series, to increase or decrease the number of shares of
any such series subsequent to the issue of shares of that series, and to
determine or alter the rights, preferences, privileges and restrictions granted
to or imposed upon any wholly unissued series of preferred stock. As of March
31, 1999, there were no shares of Edison International preferred stock
outstanding. However, the Edison International board of directors has reserved
3,000,000 shares of Series A preferred stock for issuance in connection with
rights issued under the Edison International rights agreement.
Prior to the issuance of shares of each series of preferred stock, the board
of directors is required to adopt resolutions and file a certificate of
determination with the Secretary of State of the State of California (other
than the Series A preferred stock, for which those actions have been taken
previously). The certificate of determination will fix for each series the
designation and number of shares and the rights, preferences, privileges and
restrictions of the shares including, but not limited to, the following:
(a) the title and stated value of the preferred stock;
(b) voting rights, if any, of the preferred stock;
(c) any rights and terms of redemption (including sinking fund
provisions);
(d) the dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation applicable to the preferred stock;
(e) whether dividends are cumulative or non-cumulative and, if
cumulative, the date from which dividends on the preferred stock will
accumulate;
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(f) the relative ranking and preferences of the preferred stock as to
dividend rights and rights upon the liquidation, dissolution or winding up
of our affairs;
(g) the terms and conditions, if applicable, upon which the preferred
stock will be convertible into common stock, including the conversion price
(or manner of calculation) and conversion period;
(h) the provision for redemption, if applicable, of the preferred stock;
(i) the provisions for a sinking fund, if any, for the preferred stock;
(j) liquidation preferences;
(k) any limitations on issuance of any class or series of preferred
stock ranking senior to or on a parity with the class or series of
preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our affairs; and
(l) any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock.
All shares of preferred stock will, when issued, be fully paid and
nonassessable and will not have any preemptive or similar rights.
In addition to the terms listed above, we will set forth in a prospectus
supplement the following terms relating to the class or series of preferred
stock being offered:
(a) the number of shares of the preferred stock offered, the liquidation
preference per share and the offering price of the preferred stock;
(b) the procedures for auction and remarketing, if any, for the
preferred stock;
(c) any listing of the preferred stock on any securities exchange; and
(d) a discussion of any material and/or special United States federal
income tax considerations applicable to the preferred stock.
Rank
Unless we specify otherwise in the applicable prospectus supplement, the
preferred stock will rank, with respect to dividends and upon our liquidation,
dissolution or winding up:
(a) senior to all classes or series of our common stock and to all of
our equity securities ranking junior to the preferred stock;
(b) on a parity with all of our equity securities the terms of which
specifically provide that the equity securities rank on a parity with the
preferred stock; and
(c) junior to all of our equity securities the terms of which
specifically provide that the equity securities rank senior to the
preferred stock.
Description of Preferred Share Purchase Rights
On November 21, 1996, the Edison International board of directors adopted a
preferred share purchase rights plan providing that one preferred share
purchase right will attach to each share of Edison International common stock.
The description and terms of the rights are set forth in a rights agreement,
dated as of November 21, 1996, by and between Edison International and Harris
Trust Company of California, as rights agent. The purchase rights have an anti-
takeover effect that is intended to discourage coercive or unfair takeover
tactics and to encourage any potential acquirer to negotiate a fair price to
all Edison International shareholders. The purchase rights may cause
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substantial dilution to any party that may attempt to acquire Edison
International on terms not approved by the Edison International board of
directors. However, the purchase rights are structured in a way so as not to
interfere with any negotiated merger or other business combination. The rights
will expire on November 21, 2006. Until a right is exercised, the holder of the
right will have no rights as a shareholder of Edison International beyond those
rights afforded to existing shareholders, including the right to vote or to
receive dividends.
The rights are designed to assure that all of Edison International's
shareholders receive fair and equal treatment in the event of any proposed
takeover of Edison International and to guard against partial tender offers,
open market accumulations and other abusive tactics that may be deployed to
gain control of Edison International without a control premium paid to all
shareholders. Any time prior to the first date that a person or group has
become an "acquiring person" as defined in the rights agreement, the rights
should not interfere with any merger or other business combination as long as
it is approved by the Edison International board of directors.
Anti-Takeover Provisions
The Edison International articles of incorporation and bylaws contain
provisions that may have the effect of discouraging persons from acquiring
large blocks of Edison International stock or delaying or preventing a change
in control of Edison International. The material provisions which may have such
an effect are:
(a) a provision permitting the Edison International board of directors
to amend or repeal the Edison International bylaws, except that provisions
of the bylaws specifying or changing a fixed number of directors or the
maximum or minimum number or changing from a fixed to a variable board of
directors or vice versa may only be adopted by approval of outstanding
shares;
(b) authorization for the Edison International board of directors to
issue Edison International preferred stock in series and to fix rights and
preferences of the series (including, among other things, whether, and to
what extent, the shares of any series will have voting rights and the
extent of the preferences of the shares of any series with respect to
dividends and other matters); and
(c) a provision requiring the approval of holders of at least 80% of the
outstanding voting shares of Edison International for such acquisition or
change of control unless either a majority of the disinterested directors
of the Edison International board of directors approves such acquisition or
change of control or the consideration received in connection with such
acquisition or change of control equals at least the fair market value of
the capital stock of Edison International.
Some acquisitions of Edison International's outstanding voting shares would
also require approval of the SEC under the Public Utility Holding Company Act
of 1935 and of various federal, state and foreign regulatory authorities.
DESCRIPTION OF PREFERRED SECURITIES
General
Each Trust Agreement authorizes the regular trustees to issue on behalf of
each trust one series of preferred securities which will have the terms
described in a prospectus supplement. The proceeds from the sale of a trust's
preferred and common securities will be used by the trust to purchase a series
of subordinated debt securities issued by Edison International. The
subordinated debt securities will be held in trust by the property trustee for
the benefit of the holders of the preferred and common securities.
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Under each preferred securities guarantee, Edison International will agree
to make payments of distributions and payments on redemption or liquidation
with respect to a trust's preferred securities, but only to the extent the
trust has funds available to make those payments and has not made the payments.
See "Description of Preferred Securities Guarantees."
The assets of a trust available for distribution to the holders of its
preferred securities will be limited to payments from Edison International
under the series of subordinated debt securities held by the trust. If Edison
International fails to make a payment on the subordinated debt securities, the
trust will not have sufficient funds to make related payments, including
distributions, on its preferred securities.
Each preferred securities guarantee, when taken together with Edison
International's obligations under the related series of subordinated debt
securities, the subordinated indenture, the related Trust Agreement and the
related expense agreement (as described below), will provide a full and
unconditional guarantee by Edison International of amounts due on the preferred
securities issued by a trust.
Each Trust Agreement will be qualified as an indenture under the Trust
Indenture Act. Each property trustee will act as indenture trustee for the
preferred securities to be issued by the applicable trust, in order to comply
with the provisions of the Trust Indenture Act.
Each series of preferred securities will have the terms, including those
regarding distributions, redemption, voting, liquidation rights and the other
preferred, deferred or other special rights or other restrictions, as described
in the relevant Trust Agreement or made part of the Trust Agreement by the
Trust Indenture Act or the Delaware Business Trust Act. The terms of the
preferred securities will mirror the terms of the subordinated debt securities
held by the trust.
The prospectus supplement relating to the preferred securities of a trust
will describe the specific terms of the preferred securities, including:
(a) the name of the preferred securities;
(b) the dollar amount and number of securities issued;
(c) any provision relating to deferral of distribution payments;
(d) the annual distribution rate(s), or method of determining the
rate(s), the payment date(s) and the record dates used to determine the
holders who are to receive distributions;
(e) the date from which distributions will be cumulative;
(f) the optional redemption provisions, if any, including the prices,
time periods and other terms and conditions for which the preferred
securities will be purchased or redeemed, in whole or in part;
(g) the terms and conditions, if any, upon which the applicable series
of subordinated debt securities may be distributed to holders of the
preferred securities;
(h) the voting rights, if any, of holders of the preferred securities;
(i) any securities exchange on which the preferred securities will be
listed;
(j) whether the preferred securities are to be issued in book-entry form
and represented by one or more global certificates and, if so, the
depository for the global certificates and the specific terms of the
depositary arrangements; and
(k) any other relevant rights, preferences, privileges, limitations or
restrictions of the preferred securities.
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Each prospectus supplement will describe various United States federal
income tax considerations applicable to the purchase, holding and disposition
of the series of preferred securities covered by the prospectus supplement.
Liquidation Distribution Upon Dissolution
Unless otherwise specified in an applicable prospectus supplement, each
Trust Agreement states that the related trust shall be dissolved:
(a) on the expiration of the term of the trust;
(b) upon the bankruptcy, dissolution or liquidation of Edison
International;
(c) upon direction by Edison International to the property trustee to
dissolve the trust and distribute the related subordinated debt securities
directly to the holders of the preferred and common securities of the
trust;
(d) upon the redemption of all of the common and preferred securities of
the trust in connection with the redemption of all of the related
subordinated debt securities; or
(e) upon entry of a court order for the dissolution of the trust.
Unless otherwise specified in an applicable prospectus supplement, in the
event of a dissolution as described in (a), (b), (c) or (e) above, after the
trust satisfies all liabilities to its creditors as provided by applicable law,
each holder of the preferred or common securities will be entitled to receive:
(a) the related subordinated debt securities in an aggregate principal
amount equal to the aggregate liquidation amount of the preferred or common
securities held by the holder; or
(b) if such a distribution of related subordinated debt securities is
determined by the property trustee not to be practical, cash equal to the
aggregate liquidation amount of the preferred or common securities held by
the holder, plus accumulated and unpaid distributions to the date of
payment.
If the trust cannot pay the full amount due on its preferred and common
securities because insufficient assets are available for payment, then the
amounts payable by the trust on its preferred and common securities will be
paid on a pro rata basis. However, if an event of default under the related
subordinated indenture has occurred and is continuing, the total amounts due on
the preferred securities will be paid before any distribution on the common
securities.
Events of Default
An "event of default" under the Trust Agreement (a "Trust Agreement event of
default") occurs if: (a) an event of default under the subordinated indenture
relating to a series of subordinated debt securities occurs or (b) any other
event of default specified in the prospectus supplement occurs. See
"Description of Debt Securities--Events of Default."
Edison International and the regular trustees of a trust must file annually
with the property trustee for the trust a certificate stating whether or not
they are in compliance with all the applicable conditions and covenants under
the related Trust Agreement.
If an event of default occurs under the subordinated indenture, and the
indenture trustee and the holders of not less than 25% in principal amount of
the related subordinated debt securities outstanding fail to declare the
principal of all of such subordinated debt securities to be immediately due and
payable, the holders of at least 25% in aggregate liquidation amount of the
outstanding
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preferred securities of the applicable trust will have the right to declare
such principal immediately due and payable, by providing notice to Edison
International and the indenture trustee.
If Edison International fails to pay principal, premium, if any, or interest
on a series of subordinated debt securities when payable, then a holder of the
related preferred securities may directly sue Edison International to collect
its pro rata share of payments owed.
Consolidation, Merger or Amalgamation of the Trusts
A trust may not consolidate, amalgamate, merge with or into, or be replaced
by or convey, transfer or lease its properties and assets substantially as an
entirety to any corporation or other body ("Merger Event"), except as described
below or as described in "Liquidation Distribution Upon Dissolution." A trust
may, with the consent of the holders of at least a majority in aggregate
liquidation amount of its outstanding 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 another trust, if:
(a) the successor entity either
(1) expressly assumes all of the obligations of the trust relating
to its preferred securities; or
(2) substitutes for the trust's preferred securities other
securities having substantially the same terms as the preferred
securities ("successor securities"), so long as the successor
securities rank the same as the preferred securities for distributions
and payments upon liquidation, redemption and otherwise;
(b) Edison International expressly appoints a trustee of the successor
entity who has the same powers and duties as the property trustee of the
trust as the holder of the particular series of subordinated debt
securities;
(c) the preferred securities are listed or traded, or any successor
securities will be listed upon notice of issuance, on the same national
securities exchange or other organization on which the preferred securities
are then listed or traded;
(d) the Merger Event does not cause the preferred securities or any
successor securities to be downgraded by any national rating agency;
(e) the Merger Event does not adversely affect the rights, preferences
and privileges of the holders of the preferred securities or any successor
securities in any material way;
(f) the successor entity has a purpose substantially identical to that
of the trust;
(g) prior to the Merger Event, Edison International has received an
opinion of counsel from a nationally recognized law firm stating that:
(1) the Merger Event does not adversely affect the rights,
preferences and privileges of the holders of the trust's preferred
securities or any successor securities in any material way; and
(2) following the Merger Event, neither the trust nor the successor
entity will be required to register as an investment company under the
Investment Company Act of 1940, as amended; and
(h) Edison International owns all of the common securities of the
successor entity and guarantees the obligations of the successor entity
under the successor securities at least to the extent provided under the
applicable preferred securities guarantee.
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In addition, unless all of the holders of the preferred securities approve
otherwise, a trust may not 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 the transaction
would cause the trust or the successor entity to be classified other than as a
grantor trust for United States federal income tax purposes.
Voting Rights; Amendment of Trust Agreement
Unless otherwise specified in an applicable prospectus supplement, the
holders of preferred securities will have no voting rights except as discussed
below and under "--Consolidation, Merger or Amalgamation of the Trusts" and
"Description of the Preferred Securities Guarantees--Amendments and
Assignment," and as otherwise required by law and the Trust Agreement for the
trust.
If any proposed amendment to the Trust Agreement of a trust provides for, or
the regular trustees of the trust otherwise propose to effect:
(a) any action that would adversely affect the powers, preferences or
special rights of the trust's preferred securities in any material respect,
whether by way of amendment to the Trust Agreement or otherwise; or
(b) the dissolution, winding-up or termination of the trust other than
pursuant to the terms of its Trust Agreement,
then the holders of the trust's preferred securities as a class will be
entitled to vote on the amendment or proposal. In that case, the amendment or
proposal will be effective only if approved by the holders of at least a
majority in aggregate liquidation amount of the preferred securities.
The Trust Agreement of a trust may be amended from time to time by Edison
International and the property trustee and the regular trustees of the trust,
without the consent of the holders of preferred securities of the trust, to:
(a) cure any ambiguity, correct or supplement any provision which may be
inconsistent with any other provision, or make provisions not inconsistent
with any other provisions with respect to matters or questions arising
under the Trust Agreement, in each case to the extent that the amendment
does not adversely affect the interests of any holder of preferred
securities of the trust in any material respect; or
(b) modify, eliminate or add to any provisions to the extent necessary
to ensure that the trust will not be classified as other than a grantor
trust for United States federal income tax purposes or to ensure that the
trust will not be required to register as an "investment company" under the
Investment Company Act.
Except a provided in the next paragraph, other amendments to the Trust
Agreement of a trust may be made by Edison International and the trustees of
the trust upon:
(a) approval of the holders of a majority in aggregate liquidation
amount of the outstanding preferred securities of the trust; and
(b) receipt by the trustees of an opinion of counsel to the effect that
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 the
Investment Company Act.
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Notwithstanding the foregoing, without the consent of each affected holder
of common or preferred securities of a trust, the Trust Agreement of the trust
may not be amended to:
(a) change the amount or timing of any distribution on the common or
preferred securities of the trust or otherwise adversely affect the amount
of any distribution required to be made in respect of such securities as of
a specified date; or
(b) restrict the right of a holder of any such securities to institute
suit for the enforcement of any such payment on or after such date.
In addition, no amendment may be made to a Trust Agreement if the amendment
would:
(a) cause the related trust to be characterized as other than a grantor
trust for United States federal income tax purposes;
(b) cause the related trust to be deemed to be an "investment company"
which is required to be registered under the Investment Company Act; or
(c) impose any additional obligation on Edison International, the
property trustee or the Delaware trustee without its consent.
Without obtaining the prior approval of the holders of a majority in
aggregate liquidation amount of the preferred securities of a trust, the
trustees of the trust may not:
(a) direct the time, method and place of conducting any proceeding for
any remedy available to the indenture trustee for the subordinated debt
securities held by the trust or executing any trust or power conferred on
the property trustee with respect to such securities;
(b) waive any default that is waivable under the subordinated indenture;
(c) cancel an acceleration of the principal of the subordinated debt
securities; or
(d) consent to any amendment, modification or termination of the
subordinated indenture or the subordinated debt securities where such
consent is required.
However, if a consent under the subordinated indenture requires the consent of
each affected holder of subordinated debt securities, then the property trustee
must obtain the prior consent of each holder of preferred securities. In
addition, before taking any of the foregoing actions, the property trustee must
obtain an opinion of counsel stating that the action will not cause the trust
to be classified as other than a grantor trust for United States federal income
tax purposes.
The property trustee of a trust will notify all preferred securities holders
of the trust of any notice of default received from the indenture trustee with
respect to the subordinated debt securities held by the trust.
Removal and Replacement of Trustees
The holder of a trust's common securities may remove or replace any of the
regular trustees and, unless an event of default has occurred and is continuing
under the subordinated indenture, the property and Delaware trustees of the
trust. If such an event of default has occurred and is continuing, only the
holders of a trust's preferred securities may remove or replace the property
and Delaware trustees. The resignation or removal of any trustee will be
effective only on the acceptance of appointment by the successor trustee in
accordance with the provisions of the Trust Agreement for the trust.
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Information Concerning the Property Trustees
For matters relating to compliance with the Trust Indenture Act, the
property trustee of each trust will have all of the duties and
responsibilities of an indenture trustee under the Trust Indenture Act. Each
property trustee, other than during the occurrence and continuance of a
default under the applicable Trust Agreement, undertakes to perform only the
duties as are specifically set forth in the applicable Trust Agreement and,
after a default, must use the same degree of care and skill as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, a property trustee is under no obligation to exercise any
of the powers given it by the applicable Trust Agreement at the request of any
holder of preferred securities unless it is offered reasonable security or
indemnity against the costs, expenses and liabilities that it might incur. If
the property trustee is required to decide between alternative courses of
action, construe ambiguous provisions in the applicable Trust Agreement or is
unsure of the application of any provision of the applicable Trust Agreement,
and the matter is not one on which the holders of preferred securities are
entitled to vote, then the property trustee will take such action as it deems
advisable and in the best interests of the holders of the preferred and common
securities. In this event, the property trustee will have no liability except
for its own bad faith, negligence or willful misconduct.
The property trustee for each of the trusts is the same entity and will
also serve as the indenture trustee under each of the indentures and the
guarantee trustee under each of the guarantee agreements. Edison International
and certain of its subsidiaries maintain deposit accounts and banking
relationships with the property trustee.
Miscellaneous
The trustees of each trust are authorized and directed to conduct the
affairs of and to operate the trust in such a way that:
(a) it will not be deemed to be an "investment company" required to be
registered under the Investment Company Act;
(b) it will be classified as a grantor trust for United States federal
income tax purposes; and
(c) the subordinated debt securities held by it will be treated as
indebtedness of Edison International for United States federal income tax
purposes.
Edison International and the trustees of each trust are authorized to take
any action (so long as it is consistent with applicable law or the applicable
certificate of trust or Trust Agreement) that Edison International and the
trustees of the trust determine to be necessary or desirable for such
purposes.
Registered holders of preferred securities have no preemptive or similar
rights.
A trust may not borrow money, issue debt, execute mortgages or pledge any
of its assets.
Governing Law
Each Trust Agreement and the related preferred securities will be governed
by and construed in accordance with the laws of the State of Delaware.
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DESCRIPTION OF PREFERRED SECURITIES GUARANTEES
General
Edison International will execute a guarantee agreement (a "preferred
securities guarantee"), for the benefit of the holders of preferred securities,
at the time that a trust issues those preferred securities. Each preferred
securities guarantee will be qualified as an indenture under the Trust
Indenture Act. The Chase Manhattan Bank will act as indenture trustee
("guarantee trustee") under each preferred securities guarantee for the
purposes of compliance with the Trust Indenture Act.
The guarantee trustee will hold each preferred securities guarantee for the
benefit of the preferred securities holders of the applicable trust.
Edison International will irrevocably agree, as described in each preferred
securities guarantee, to pay in full, to the holders of the preferred
securities issued by the applicable trust, the preferred securities guarantee
payments (as defined below) (except to the extent previously paid), when and as
due, regardless of any defense, right of set-off or counterclaim which the
trust may have or assert. The following payments, to the extent not paid by a
trust ("preferred securities guarantee payments"), will be covered by the
applicable preferred securities guarantee:
(a) any accumulated and unpaid distributions required to be paid on the
applicable preferred securities, to the extent that the trust has funds
available to make the payment;
(b) the redemption price, to the extent that the trust has funds
available to make the payment; and
(c) upon a voluntary or involuntary dissolution, termination, winding-up
or liquidation of the trust (other than in connection with a distribution
of subordinated debt securities to holders of the preferred securities),
the lesser of:
(1) the aggregate of the liquidation amounts specified in the
prospectus supplement for each preferred security plus all accumulated
and unpaid distributions on the preferred security to the date of
payment, to the extent the trust has funds available to make the
payment; and
(2) the amount of assets of the trust remaining available for
distribution to holders of its preferred securities upon liquidation of
the trust.
Edison International's obligation to make a preferred securities guarantee
payment may be satisfied by directly paying the required amounts to the holders
of the preferred securities or by causing the trust to pay the amounts to the
holders.
Status of the Preferred Securities Guarantees
Each preferred securities guarantee will constitute an unsecured obligation
of Edison International and will rank:
(a) subordinate and junior in right of payment to all of Edison
International's other liabilities except those that rank equally or are
subordinate by their terms; and
(b) equal with any other preferred securities guarantee now or hereafter
issued by Edison International on behalf of the holders of preferred
securities issued by any other trust.
Each preferred securities guarantee will constitute a guarantee of payment
and not of collection (in other words, the holder of the guaranteed security
may sue Edison International, or seek other remedies, to enforce its rights
under the preferred securities guarantee without first suing any other person
or entity). A preferred securities guarantee will not be discharged except by
payment of the preferred securities guarantee payments in full to the extent
not otherwise paid or upon distribution to the applicable preferred securities
holders of the related subordinated debt securities pursuant to the applicable
Trust Agreement.
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Amendments and Assignment
Except with respect to any changes which do not adversely affect the rights
of holders of preferred securities in any material respect (in which case no
consent of the holders will be required), a preferred securities guarantee may
be amended only with the prior approval of the holders of at least a majority
in aggregate liquidation amount of the preferred securities. A description of
the way to obtain any approval appears under "Description of the Preferred
Securities--Voting Rights; Amendment of Trust Agreements." All guarantees and
agreements contained in a preferred securities guarantee will be binding on
Edison International's successors, assigns, receivers, trustees and
representatives and are for the benefit of the holders of the applicable
preferred securities.
Events of Default
An event of default under a preferred securities guarantee occurs if Edison
International fails to make any of its required payments or fails to perform
any of its other obligations (and such failure continues for 30 days) under the
preferred securities guarantee.
The holders of at least a majority in aggregate liquidation amount of the
preferred securities relating to each preferred securities guarantee will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the guarantee trustee relating to the preferred
securities guarantee or to direct the exercise of any trust or power given to
the guarantee trustee under the preferred securities guarantee.
Information Concerning Guarantee Trustees
The guarantee trustee under a preferred securities guarantee, other than
during the occurrence and continuance of a default under the preferred
securities guarantee, will perform only the duties that are specifically
described in the preferred securities guarantee. After such a default, the
guarantee trustee will exercise the same degree of care and skill as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, a guarantee trustee is under no obligation to exercise any
of its powers as described in the applicable preferred securities guarantee at
the request of any holder of covered preferred securities unless it is offered
security and indemnity satisfactory to it against the costs, expenses and
liabilities that it might incur.
Termination of the Preferred Securities Guarantees
Each preferred securities guarantee will terminate once the applicable
preferred securities are paid in full or upon distribution of the related
subordinated debt securities to the holders of the preferred securities in
accordance with the applicable Trust Agreement. Each preferred securities
guarantee will continue to be effective or will be reinstated if at any time
any holder of preferred securities issued by the applicable trust must restore
payment of any sums paid under the preferred securities or the preferred
securities guarantee.
Governing Law
The preferred securities guarantees will be governed by and construed in
accordance with the laws of the State of 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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DESCRIPTION OF EXPENSE AGREEMENTS
Edison International will execute an expense agreement at the same time that
a trust issues preferred securities. Under the expense agreement, Edison
International will irrevocably and unconditionally guarantee to each creditor
of the trust, the full amount of the trust's costs, expenses and liabilities,
other than the amounts owed to holders of its preferred and common securities
pursuant to the terms of those securities. Third parties will be entitled to
enforce the expense agreement.
Edison International's obligations under the expense agreement will be
subordinated in right of payment to the same extent as the preferred securities
guarantee. The expense agreement will contain provisions regarding amendment,
termination, assignment, succession and governing law similar to those
contained in the preferred securities guarantee.
RELATIONSHIP AMONG PREFERRED SECURITIES, PREFERRED SECURITIES
GUARANTEES AND SUBORDINATED DEBT SECURITIES HELD BY EACH TRUST
Payments of distributions and redemption and liquidation payments due on
each series of preferred securities (to the extent the applicable trust has
funds available for the payments) will be guaranteed by Edison International to
the extent described under "Description of the Preferred Securities
Guarantees." No single document executed by Edison International in connection
with the issuance of any series of preferred securities will provide for its
full, irrevocable and unconditional guarantee of the preferred securities. It
is only the combined operation of Edison International's obligations under the
applicable preferred securities guarantee, Trust Agreement, subordinated
indenture and subordinated debt securities and expense agreement that has the
effect of providing a full, irrevocable and unconditional guarantee of a
trust's obligations under its preferred securities.
As long as Edison International makes payments of interest and other
payments when due on the subordinated debt securities held by a trust, the
payments will be sufficient to cover the payment of distributions and
redemption and liquidation payments due on the preferred securities issued by
that trust, primarily because:
(a) the aggregate principal amount of the subordinated debt securities
will be equal to the sum of the aggregate liquidation amounts of the
preferred and common securities;
(b) the interest rate and interest and other payment dates on the
subordinated debt securities will match the distribution rate and
distribution and other payment dates for the preferred securities;
(c) Edison International has agreed to pay for any and all costs,
expenses and liabilities of each trust except the trust's obligations under
its preferred securities; and
(d) each Trust Agreement provides that the related trust will not engage
in any activity that is not consistent with the limited purposes of the
trust.
If and to the extent that Edison International does not make payments on the
subordinated debt securities, the trust will not have funds available to make
payments of distributions or other amounts due on its preferred securities. In
those circumstances, a holder of preferred securities of the trust will not be
able to rely upon the preferred securities guarantee for payment of these
amounts. Instead, the holder may directly sue Edison International or seek
other remedies to collect its pro rata share of payments owed. If a holder sues
Edison International to collect payment, then Edison International will assume
the holder's rights as a holder of preferred securities under the trust's Trust
Agreement to the extent Edison International makes a payment to the holder in
any legal action.
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A holder of any preferred security may sue Edison International, or seek
other remedies, to enforce its rights under the applicable preferred securities
guarantee without first suing the applicable guarantee trustee, the trust which
issued the preferred security or any other person or entity.
EXPERTS
The consolidated financial statements and schedule incorporated by reference
in this prospectus and the registration statement of which this prospectus is a
part have been audited by Arthur Andersen LLP, independent public accountants,
as indicated in their reports with respect thereto, and are incorporated by
reference herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
VALIDITY OF THE SECURITIES AND THE PREFERRED SECURITIES GUARANTEES
Kenneth S. Stewart, Assistant General Counsel of Edison International, will
pass upon the validity of the debt securities, the common and preferred stock
and the preferred securities guarantees for Edison International. Richards,
Layton & Finger, P.A. will pass upon certain matters of Delaware law relating
to the validity of the preferred securities for Edison International and the
trusts.
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus from time to time in
one or more transactions
(a) to purchasers directly;
(b) to underwriters for public offering and sale by them;
(c) through agents;
(d) through dealers; or
(e) through a combination of any of the foregoing methods of sale.
We may distribute the securities from time to time in one or more
transactions at:
(a) a fixed price or prices, which may be changed;
(b) market prices prevailing at the time of sale;
(c) prices related to such prevailing market prices; or
(d) negotiated prices.
Direct Sales
We may sell the securities directly to institutional investors or others who
may be deemed to be underwriters within the meaning of the Securities Act of
1933, as amended, with respect to any resale of the securities. A prospectus
supplement will describe the terms of any sale of securities we are offering
hereunder.
To Underwriters
The applicable prospectus supplement will name any underwriter involved in a
sale of securities. Underwriters may offer and sell securities at a fixed price
or prices, which may be changed, or from time to time at market prices or at
negotiated prices. Underwriters may be deemed to have received
30
<PAGE>
compensation from us from sales of securities in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of
securities for whom they may act as agent. Underwriters may be involved in any
at the market offering of equity securities by or on our behalf.
Underwriters may sell securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions (which may be changed from time to time)
from the purchasers for whom they may act as agent.
Unless otherwise provided in a prospectus supplement, the obligations of any
underwriters to purchase securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all the
securities if any are purchased.
Through Agents and Dealers
We will name any agent involved in a sale of securities, as well as any
commissions payable by us to such agent, in a prospectus supplement. Unless we
indicate differently in the prospectus supplement, any such agent will be
acting on a reasonable efforts basis for the period of its appointment.
If we utilize a dealer in the sale of the securities being offered pursuant
to their prospectus, we will sell the securities to the dealer, as principal.
The dealer may then resell the securities to the public at varying prices to be
determined by the dealer at the time of resale.
Delayed Delivery Contracts
If we so specify in the applicable prospectus supplement, we will authorize
underwriters, dealers and agents to solicit offers by certain institutions to
purchase the securities pursuant to contracts providing for payment and
delivery on future dates. Such contracts will be subject to only those
conditions set forth in the applicable prospectus supplement.
The underwriters, dealers and agents will not be responsible for the
validity or performance of the contracts. We will set forth in the prospectus
supplement relating to the contracts the price to be paid for the securities,
the commissions payable for solicitation of the contracts and the date in the
future for delivery of the securities.
General Information
Underwriters, dealers and agents participating in a sale of the securities
may be deemed to be underwriters as defined in the Securities Act, and any
discounts and commissions received by them and any profit realized by them on
resale of the securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. We may have agreements with
underwriters, dealers and agents to indemnify them against certain civil
liabilities, including liabilities under the Securities Act, and to reimburse
them for certain expenses.
Underwriters or agents and their associates may be customers of, engage in
transactions with or perform services for us or our affiliates in the ordinary
course of business.
Unless we indicate differently in a prospectus supplement, we will not list
the securities on any securities exchange. The securities will be a new issue
of securities with no established trading market. Any underwriters that
purchase securities for public offering and sale may make a market in such
securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. We make no assurance
as to the liquidity of or the trading markets for any securities.
31
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
No dealer, salesperson or other person is authorized to give any information
or to represent anything not contained in this prospectus. You must not relay
on any unauthorized information or representations. This prospectus is an offer
to sell only the QUIPS offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. The information contained in this
prospectus is current only as of its date.
------------
TABLE OF CONTENTS
Prospectus Supplement
<TABLE>
<CAPTION>
Page
----
<S> <C>
Summary Information--Q&A.................................................. S-2
Risk Factors.............................................................. S-6
Accounting Treatment...................................................... S-9
Use of Proceeds........................................................... S-9
Description of the Series A QUIPS......................................... S-10
Description of the Series A QUIDS......................................... S-17
Book-Entry Issuance....................................................... S-24
Material United States Federal Income Tax Considerations.................. S-28
Underwriting.............................................................. S-34
Validity of Series A QUIPS, Series A QUIDS and Series A QUIPS Guarantee... S-36
Prospectus
About This Prospectus..................................................... 3
Forward-looking Statements................................................ 3
Where You Can Find More Information....................................... 4
Edison International...................................................... 5
The Trusts................................................................ 6
Use of Proceeds........................................................... 7
Ratio of Edison International Earnings to Fixed Charges and Preferred
Stock Dividends.......................................................... 7
Description of Securities................................................. 8
Description of Debt Securities............................................ 8
Description of Edison International's Common Stock and Preferred Stock.... 17
Description of Preferred Securities....................................... 20
Description of Preferred Securities Guarantees............................ 27
Description of the Expense Agreement...................................... 29
Relationship Among Preferred Securities, Preferred Securities Guarantees
and Subordinated Debt Securities Held By Each Trust...................... 29
Experts................................................................... 30
Validity of the Securities and the Guarantees............................. 30
Plan of Distribution...................................................... 30
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Preferred Securities
EIX Trust I
% Cumulative Quarterly
Income Preferred Securities
(QUIPS(SM))
Fully and unconditionally guaranteed, as described herein, by
Edison International
------------
PROSPECTUS SUPPLEMENT
------------
Goldman, Sachs & Co.
Representatives of the Underwriters
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $695,000.00
Printing expenses............................................... *
Trustee fees and expenses....................................... *
Legal fees and expenses......................................... *
Accounting fees and expenses.................................... *
Blue Sky fees and expenses...................................... *
Rating Agency fees.............................................. *
Miscellaneous................................................... *
-----------
Total......................................................... $ *
===========
</TABLE>
- --------
* To be filed by amendment.
Item 15. Indemnification of Officers and Directors.
Section 317 of the California Corporations Code provides that a corporation
shall have the power to indemnify any person who was or is a party or is
threatened to be made a party to any proceeding or action by reason of the fact
that he or she is or was a director, officer, employee or other agent of such
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other
enterprise. Section 317 also grants authority to a corporation to include in
its articles of incorporation indemnification provisions in excess of that
permitted in Section 317, subject to certain limitations.
Article Sixth of the Restated Articles of Incorporation of Edison
International authorizes Edison International to provide indemnification of
directors, officers, employees, and other agents through bylaw provisions,
agreements with agents, votes of shareholders or disinterested directors, or
otherwise, in excess of the indemnification otherwise permitted by Section 317
of the California Corporations Code, subject only to the applicable limits set
forth in Section 204 of the California Corporations Code.
Article VI of the Amended Bylaws of Edison International contains provisions
implementing the authority granted in Article Sixth of the Articles of
Incorporation. The Bylaws provide for the indemnification of any director or
officer of Edison International, or any person acting at the request of Edison
International as a director, officer, employee or agent of another corporation
or other enterprise, for any threatened, pending or completed action, suit or
proceeding to the fullest extent permissible under California law and the
Restated Articles of Incorporation of Edison International, subject to the
terms of any agreement between Edison International and such a person; provided
that, no such person shall be indemnified: (i) except to the extent that the
aggregate of losses to be indemnified exceeds the amount of such losses for
which the director or officer is paid pursuant to any director's or officer's
liability insurance policy maintained by Edison International; (ii) on account
of any suit in which judgment is rendered for an accounting of profits made
from the purchase or sale of securities of Edison International pursuant to
Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or
similar provisions of any federal, state or local statutory law; (iii) if a
court of competent jurisdiction finally determines that the indemnification is
unlawful; (iv) for acts or omissions involving intentional misconduct or
knowing and culpable violation of law; (v) for acts or omissions that the
director or officer believes to be contrary to the best interests of Edison
International or its shareholders, or that involve the absence of good faith;
(vi) for any transaction from which the director or officer derived an improper
personal benefit; (vii) for acts or omissions that show a reckless disregard
for the director's or officer's duty to Edison International or its
shareholders in circumstances in which the director or officer was aware, or
should have been aware, in the ordinary course of performing his or her duties,
of a risk of serious injury to Edison International or its shareholders; (viii)
for acts or omissions that constitute an unexcused
II-1
<PAGE>
pattern of inattention that amount to an abdication of the director's or
officer's duties to Edison International or its shareholders; (ix) for costs,
charges, expenses, liabilities and losses arising under Section 310 or 316 of
the California Corporation Code; or (x) as to circumstances in which indemnity
is expressly prohibited by Section 317 of the California Corporation Code. The
exclusions set forth in clauses (iv) through (ix) above shall apply only to
indemnification with regard to any action brought by or in the right of Edison
International for breach of duty to Edison International or its shareholders.
The Amended Bylaws of Edison International also provide that Edison
International shall indemnify any director or officer in connection with (a) a
proceeding (or part thereof) initiated by him or her only if such proceeding
(or part thereof) was authorized by the Board of Directors or (b) a proceeding
(or part thereof), other than a proceeding by or in the name of Edison
International to procure a judgment in its favor, only if any settlement of
such a proceeding is approved in writing by Edison International.
Indemnification shall cover all costs, charges, expenses, liabilities and
losses, including attorneys' fees, judgments, fines, ERISA excise taxes, or
penalties and amounts paid or to be paid in settlement, reasonably incurred or
suffered by the director or officer.
Edison International has directors' and officers' liability insurance
policies in force insuring directors and officers of Edison International and
its subsidiaries. Edison International has also entered into written agreements
with each of its directors incorporating the indemnification provisions of the
Bylaws.
Item 16. Exhibits.
<TABLE>
<C> <S>
*1.1 Underwriting Agreement (Preferred Securities).
*1.2 Underwriting Agreement (Senior Debt Securities).
*1.3 Underwriting Agreement (Subordinated Debt Securities).
*1.4 Underwriting Agreement (Common Stock).
*1.5 Underwriting Agreement (Preferred Stock).
3.1 Restated Articles of Incorporation of Edison International dated May
7, 1998 (Incorporated by reference from the Annual Report on Form 10-K
for the year ended December 31, 1998, File No. 1-9936 (Exhibit 3.1)).
3.2 Certificate of Determination of Series A Junior Participating
Cumulative Preferred Stock of Edison International dated November 21,
1996 (Incorporated by reference from the Registration Statement on
Form 8-A filed November 21, 1996 (Exhibit 4.2)).
3.3 Amended Bylaws of Edison International as adopted by the Board of
Directors on April 15, 1999 (Incorporated by reference from the
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1999, File No. 1-9936 (Exhibit 3.3)).
3.4 Certificate of Trust of EIX Trust I.
3.5 Certificate of Trust of EIX Trust II.
3.6 Certificate of Trust of EIX Trust III.
4.1 Form of Indenture for Senior Debt Securities.
4.2 Form of Indenture for Subordinated Debt Securities.
*4.3 Form of Supplemental Indenture.
4.4 Form of Senior Note (included in Exhibit 4.1).
4.5 Form of Subordinated Note (included in Exhibit 4.2).
4.6 Form of Preferred Security (included in Exhibit 4.11).
4.7 Form of Preferred Securities Guarantee.
4.8 Trust Agreement of EIX Trust I.
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
4.9 Trust Agreement of EIX Trust II.
4.10 Trust Agreement of EIX Trust III.
4.11 Form of Amended and Restated Trust Agreement for each of EIX Trust I,
EIX Trust II and EIX Trust III.
4.12 Form of Expense Agreement for each of EIX Trust I, EIX Trust II and
EIX Trust III (included in Exhibit 4.11).
4.13 Rights Agreement dated November 21, 1996 between Edison International
and Harris Trust Company of California, as rights agent (Incorporated
by reference from the Registration Statement on Form 8-A filed
November 21, 1996 (Exhibit 4.1)).
5.1 Opinion of Kenneth S. Stewart, Assistant General Counsel of Edison
International.
5.2 Opinion of Richards, Layton & Finger, P.A. relating to EIX Trust I.
5.3 Opinion of Richards, Layton & Finger, P.A. relating to EIX Trust II.
5.4 Opinion of Richards, Layton & Finger, P.A. relating to EIX Trust III.
8.1 Opinion of Latham & Watkins relating to tax matters.
12.1 Statement regarding the computation of ratio of earnings to combined
fixed charges and preferred stock dividends for the years ended
December 31, 1998, 1997, 1996, 1995 and 1994.
23.1 Consent of Kenneth S. Stewart, Assistant General Counsel of Edison
International (included in Exhibit 5.1).
23.2 Consents of Richards, Layton & Finger, P.A. (included in Exhibits 5.2,
5.3 and 5.4).
23.3 Consent of Independent Public Accountants (Arthur Andersen LLP).
24.1 Power of Attorney (as to Edison International).
24.2 Certified Resolution of Edison International.
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of Harris Trust and Savings Bank, as Trustee under
the Indenture (Senior Debt Securities).
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Trustee under the
Indenture (Subordinated Debt Securities).
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Property Trustee--
EIX Trust I.
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Property Trustee--
EIX Trust II.
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Property Trustee--
EIX Trust III.
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Guarantee Trustee--
EIX Trust I.
25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Guarantee Trustee--
EIX Trust II.
25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Guarantee Trustee--
EIX Trust III.
</TABLE>
- --------
* To be filed by amendment or incorporated by reference pursuant to subsequent
filings by Edison International.
II-3
<PAGE>
Item 17. Undertakings.
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Securities and Exchange Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Securities
and Exchange Commission by the registrants pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of Edison International's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(5) To file an application for the purpose of determining the
eligibility of the trustees to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Securities and Exchange Commission under Section
305(b)(2) of the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described under Item 15 above, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by a registrant of expenses incurred or paid by a director, officer
or controlling person in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, such registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Edison International certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Rosemead, and State of California, on
the 2nd day of July, 1999.
EDISON INTERNATIONAL
/s/ Mary C. Simpson
By __________________________________
Mary C. Simpson
Assistant Treasurer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities indicated on the 2nd day of July, 1999.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
* Principal Executive Officer;
______________________________________ Chairman of the Board, Chief
John E. Bryson Executive Officer and Director
* Principal Financial Officer;
______________________________________ Executive Vice President and
Alan J. Fohrer Chief Financial Officer
* Controller; Vice President
______________________________________ and Controller
Thomas M. Noonan
* Director
______________________________________
Winston H. Chen
* Director
______________________________________
Warren Christopher
* Director
______________________________________
Stephen E. Frank
* Director
______________________________________
Joan C. Hanley
* Director
______________________________________
Carl F. Huntsinger
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title
<S> <C>
* Director
______________________________________
Charles D. Miller
* Director
______________________________________
Luis G. Nogales
* Director
______________________________________
Ronald L. Olson
* Director
______________________________________
James M. Rosser
* Director
______________________________________
Robert H. Smith
* Director
______________________________________
Thomas C. Sutton
* Director
______________________________________
Daniel M. Tellep
* Director
______________________________________
Edward Zapanta
</TABLE>
*By: /s/ Mary C. Simpson
_________________________________
Mary C. Simpson
(as Attorney-in-Fact)
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rosemead, and State of California, on the 2nd
day of July, 1999.
EIX TRUST I
By: EDISON INTERNATIONAL,
as Depositor
/s/ Mary C. Simpson
By: _________________________
Mary C. Simpson
Assistant Treasurer
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rosemead, and State of California, on the 2nd
day of July, 1999.
EIX TRUST II
By: EDISON INTERNATIONAL,
as Depositor
/s/ Mary C. Simpson
By: _________________________
Mary C. Simpson
Assistant Treasurer
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Rosemead, and State of California, on the 2nd
day of July, 1999.
EIX TRUST III
By: EDISON INTERNATIONAL,
as Depositor
/s/ Mary C. Simpson
By: _________________________
Mary C. Simpson
Assistant Treasurer
II-9
<PAGE>
EDISON INTERNATIONAL
EIX TRUST I
EIX TRUST II
EIX TRUST III
REGISTRATION STATEMENT ON FORM S-3
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
*1.1 Underwriting Agreement (Preferred Securities).
*1.2 Underwriting Agreement (Senior Debt Securities).
*1.3 Underwriting Agreement (Subordinated Debt Securities).
*1.4 Underwriting Agreement (Common Stock).
*1.5 Underwriting Agreement (Preferred Stock).
3.1 Restated Articles of Incorporation of Edison International dated May
7, 1998 (Incorporated by reference from Annual Report on Form 10-K for
the year ended December 31, 1998, File No. 1-9936 (Exhibit 3.1)).
3.2 Certificate of Determination of Series A Junior participating
Cumulative Preferred Stock of Edison International dated November 21,
1996 (Incorporated by reference from the Registration Statement on
Form 8-A filed November 21, 1996 (Exhibit 4.2)).
3.3 Amended Bylaws of Edison International as adopted by the Board of
Directors on April 15, 1999 (Incorporated by reference from the
Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1999, File No. 1-9936 (Exhibit 3.3)).
3.4 Certificate of Trust of EIX Trust I.
3.5 Certificate of Trust of EIX Trust II.
3.6 Certificate of Trust of EIX Trust III.
4.1 Form of Indenture for Senior Debt Securities.
4.2 Form of Indenture for Subordinated Debt Securities.
*4.3 Form of Supplemental Indenture.
4.4 Form of Senior Note (included in Exhibit 4.1).
4.5 Form of Subordinated Note (included in Exhibit 4.2).
4.6 Form of Preferred Security (included in Exhibit 4.11).
4.7 Form of Preferred Securities Guarantee.
4.8 Trust Agreement of EIX Trust I.
4.9 Trust Agreement of EIX Trust II.
4.10 Trust Agreement of EIX Trust III.
4.11 Form of Amended and Restated Trust Agreement for each of EIX Trust I,
EIX Trust II and EIX Trust III.
4.12 Form of Expense Agreement for each of EIX Trust I, EIX Trust II and
EIX Trust III (included in Exhibit 4.11).
4.13 Rights Agreement dated November 21, 1996 between Edison International
and Harris Trust Company of California, as rights agent (Incorporated
by reference from the Registration Statement on Form 8-A filed
November 21, 1996 (Exhibit 4.1)).
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<C> <S>
5.1 Opinion of Kenneth S. Stewart, Assistant General Counsel of Edison
International.
5.2 Opinion of Richards, Layton & Finger, P.A. relating to EIX Trust I.
5.3 Opinion of Richards, Layton & Finger, P.A. relating to EIX Trust II.
5.4 Opinion of Richards, Layton & Finger, P.A. relating to EIX Trust III.
8.1 Opinion of Latham & Watkins relating to tax matters.
12.1 Statement regarding the computation of ratio of earnings to combined
fixed charges and preferred stock dividends for the years ended
December 31, 1998, 1997, 1996, 1995 and 1994.
23.1 Consent of Kenneth S. Stewart, Assistant General Counsel of Edison
International (included in Exhibit 5.1).
23.2 Consents of Richards, Layton & Finger, P.A. (included in Exhibits 5.2,
5.3 and 5.4).
23.3 Consent of Independent Public Accountants (Arthur Andersen LLP).
24.1 Power of Attorney (as to Edison International).
24.2 Certified Resolution of Edison International.
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, Harris Trust and Savings Bank, as Trustee under the
Indenture (Senior Debt Securities).
25.2 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, The Chase Manhattan Bank, as Trustee under the
Indenture (Subordinated Debt Securities).
25.3 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Property Trustee--
EIX Trust I.
25.4 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Property Trustee--
EIX Trust II.
25.5 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Property Trustee--
EIX Trust III.
25.6 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Guarantee Trustee--
EIX Trust I.
25.7 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Guarantee Trustee--
EIX Trust II.
25.8 Statement of Eligibility on Form T-1 under the Trust Indenture Act of
1939, as amended, of The Chase Manhattan Bank, as Guarantee Trustee--
EIX Trust III.
</TABLE>
- --------
* To be filed by amendment or incorporated by reference pursuant to subsequent
filings by Edison International.
2
<PAGE>
EXHIBIT 3.4
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. (S) 3801 et seq.).
------ -- ---
1. Name. The name of the business trust 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 3.5
CERTIFICATE OF TRUST
OF
EIX TRUST II
THIS Certificate of Trust of EIX Trust II (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. (S) 3801 et seq.).
------ -- ---
1. Name. The name of the business trust formed hereby is EIX Trust II.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware 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 3.6
CERTIFICATE OF TRUST
OF
EIX TRUST III
THIS Certificate of Trust of EIX Trust III (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. (S) 3801 et
------ --
seq.).
- ---
1. Name. The name of the business trust formed hereby is
EIX Trust III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware 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 4.1
EDISON INTERNATIONAL
TO
HARRIS TRUST AND SAVINGS BANK
Trustee
--------------------------------------------
Senior Indenture
Dated as of
-------------
--------------------------------------------
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
- --------------------- -----------------
<S> <C>
Section 310(a)(1)........................................... 609
(a)(2).............................................. 609
(a)(3).............................................. Not Applicable
(a)(4).............................................. Not Applicable
(b)................................................. 608
610
Section 311(a).............................................. 613
(b)................................................. 613
Section 312(a).............................................. 701
702
(b)................................................. 702
(c)................................................. 702
Section 313(a).............................................. 703
(b)................................................. 703
(c)................................................. 703
(d)................................................. 703
Section 314(a).............................................. 704
(a)(4).............................................. 101
1005
(b)................................................. Not Applicable
(c)(1).............................................. 102
(c)(2).............................................. 102
(c)(3).............................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 102
Section 315(a).............................................. 601
(b)................................................. 602
(c)................................................. 601
(d)................................................. 601
(e)................................................. 514
Section 316(a).............................................. 101
(a)(1)(A)........................................... 502
512
(a)(1)(B)........................................... 513
(a)(2).............................................. Not Applicable
(b)................................................. 508
(c)................................................. 104
Section 317(a)(1)........................................... 503
(a)(2).............................................. 504
(b)................................................. 1003
Section 318(a).............................................. 107
- -------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties.............................................................................. 1
Recitals of the Corporation.......................................................... 1
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................. 1
Section 101. Definitions............................................................. 1
Section 102. Compliance Certificates and Opinions.................................... 6
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....................................... 10
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........................................................... 11
Section 113. Legal Holidays.......................................................... 11
Section 114. No Security Interest Created............................................ 11
ARTICLE II. SECURITY FORMS.......................................................... 12
Section 201. Forms Generally......................................................... 12
Section 202. Form of Face of Security................................................ 12
Section 203. Form of Reverse of Security............................................. 14
Section 204. Form of Legend for Global Securities.................................... 17
Section 205. Form of Trustee's Certificate of Authentication......................... 18
ARTICLE III. THE SECURITIES......................................................... 18
Section 301. Amount Unlimited; Issuable in Series.................................... 18
Section 302. Denominations........................................................... 21
Section 303. Execution, Authentication, Delivery and Dating.......................... 21
Section 304. Temporary Securities.................................................... 23
Section 305. Registration, Registration of Transfer and Exchange..................... 23
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........................ 25
Section 307. Payment of Interest; Interest Rights Preserved.......................... 26
Section 308. Persons Deemed Owners................................................... 27
Section 309. Cancellation............................................................ 27
Section 310. Computation of Interest................................................. 27
Section 311. CUSIP Numbers........................................................... 28
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE IV. SATISFACTION AND DISCHARGE.............................................. 28
Section 401. Satisfaction and Discharge of Indenture................................. 28
Section 402. Application of Trust Money.............................................. 29
ARTICLE V. REMEDIES................................................................. 29
Section 501. Events of Default....................................................... 29
Section 502. Acceleration of Maturity; Rescission and Annulment...................... 31
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee......... 32
Section 504. Trustee May File Proofs of Claim........................................ 32
Section 505. Trustee May Enforce Claims Without Possession of Securities............. 33
Section 506. Application of Money Collected.......................................... 33
Section 507. Limitation on Suits..................................................... 34
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest................................................................ 34
Section 509. Restoration of Rights and Remedies...................................... 34
Section 510. Rights and Remedies Cumulative.......................................... 35
Section 511. Delay or Omission Not Waiver............................................ 35
Section 512. Control By Holders...................................................... 35
Section 513. Waiver of Past Defaults................................................. 36
Section 514. Undertaking for Costs................................................... 36
Section 515. Waiver of Stay or Extension Laws........................................ 36
ARTICLE VI. THE TRUSTEE............................................................. 37
Section 601. Certain Duties and Responsibilities..................................... 37
Section 602. Notice of Defaults...................................................... 37
Section 603. Certain Rights of Trustee............................................... 37
Section 604. Not Responsible for Recitals or Issuance of Securities.................. 38
Section 605. May Hold Securities..................................................... 38
Section 606. Money Held in Trust..................................................... 38
Section 607. Compensation and Reimbursement.......................................... 39
Section 608. Conflicting Interests................................................... 39
Section 609. Corporate Trustee Required; Eligibility................................. 40
Section 610. Resignation and Removal; Appointment of Successor....................... 40
Section 611. Acceptance of Appointment by Successor.................................. 41
Section 612. Merger, Conversion, Consolidation or Succession to Business............. 42
Section 613. Preferential Collection of Claims Against Corporation................... 43
Section 614. Appointment of Authenticating Agent..................................... 43
Section 615. Trustee's Application for Instructions from the Corporation............. 44
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION.................. 44
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders........... 44
Section 702. Preservation of Information; Communications to Holders.................. 45
Section 703. Reports by Trustee...................................................... 45
Section 704. Reports by Corporation.................................................. 45
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER......................... 46
Section 801. Corporation May Consolidate, Etc., Only on Certain Terms................ 46
Section 802. Successor Substituted................................................... 47
ARTICLE IX. SUPPLEMENTAL INDENTURES................................................. 47
Section 901. Supplemental Indentures Without Consent of Holders...................... 47
Section 902. Supplemental Indentures With Consent of Holders......................... 48
Section 903. Execution of Supplemental Indentures.................................... 49
Section 904. Effect of Supplemental Indentures....................................... 50
Section 905. Conformity with Trust Indenture Act..................................... 50
Section 906. Reference in Securities to Supplemental Indentures...................... 50
ARTICLE X. COVENANTS................................................................ 50
Section 1001. Payment of Principal, Premium and Interest............................. 50
Section 1002. Maintenance of Office or Agency........................................ 50
Section 1003. Money for Securities Payments to Be Held in Trust...................... 51
Section 1004. Corporate Existence.................................................... 52
Section 1005. Statement by Officers as to Default.................................... 52
Section 1006. Waiver of Certain Covenants............................................ 52
Section 1007. Calculation of Original Issue Discount................................. 52
ARTICLE XI. REDEMPTION OF SECURITIES................................................ 53
Section 1101. Applicability of Article............................................... 53
Section 1102. Election to Redeem; Notice to Trustee.................................. 53
Section 1103. Selection by Trustee of Securities to Be Redeemed...................... 53
Section 1104. Notice of Redemption................................................... 54
Section 1105. Deposit of Redemption Price............................................ 55
Section 1106. Securities Payable on Redemption Date.................................. 55
Section 1107. Securities Redeemed in Part............................................ 56
ARTICLE XII. SINKING FUNDS.......................................................... 56
Section 1201. Applicability of Article............................................... 56
Section 1202. Satisfaction of Sinking Fund Payments with Securities.................. 56
Section 1203. Redemption of Securities for Sinking Fund.............................. 56
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE.................................... 57
Section 1301. Applicability of Article............................................... 57
Section 1302. Defeasance and Discharge............................................... 57
Section 1303. Covenant Defeasance.................................................... 58
Section 1304. Conditions to Defeasance or Covenant Defeasance........................ 58
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions............................................... 59
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE XIV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS........ 60
Section 1401. Indenture and Securities Solely Corporate Obligations.............. 60
TESTIMONIUM.......................................................................... 65
SIGNATURES AND SEALS................................................................. 65
</TABLE>
v
<PAGE>
INDENTURE, dated as of _________, ______, 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 Harris Trust and
Savings, an Illinois banking corporation, as Trustee (herein called the
"Trustee").
-------
RECITALS OF THE CORPORATION
The Corporation has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
- -----------
All things necessary to make this Indenture a valid agreement of the
Corporation, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
<PAGE>
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
---
Section 104.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
--------------------
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Corporation
------------------
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
----------------
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means a day
------------
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in that Place of Payment 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 311 W. Monroe, Chicago, IL 60606.
2
<PAGE>
"corporation" means a corporation, association, company, joint-stock
-----------
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
-------------------
"Defaulted Interest" has the meaning specified in Section 307.
------------------
"Defeasance" has the meaning specified in Section 1302.
----------
"Depositary" means, with respect to Securities of any series issuable in
----------
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
----------------
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
------------
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
---------------
"Global Security" means a Security that evidences all or part of the
---------------
Securities of any series which is issued to a Depositary or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
---------------------
"Holder" means a Person in whose name a Security is registered in the
------
Security Register.
"Indenture" means this instrument as originally executed and as it may from
---------
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount Security
--------
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
---------------------
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
----------------------
statute successor thereto, in each case as amended from time to time.
"Maturity," when used with respect to any Security, means the date on which
--------
the principal of such Security or an installment of principal becomes due and
payable as therein or
3
<PAGE>
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
-----------------
501(4).
"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
4
<PAGE>
the amount of the principal thereof which would be due and payable as of such
date upon acceleration of the Maturity thereof to such date pursuant to Section
502, (B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the principal amount
of a Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in
such Clause), and (D) Securities owned by the Corporation or any other obligor
upon the Securities or any Affiliate of the Corporation or of such other
obligor, whether of record or beneficially, shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Corporation or any other obligor upon the Securities or any Affiliate
of the Corporation or of such other obligor.
"Paying Agent" means any Person authorized by the Corporation to pay the
------------
principal of or any premium or interest on any Securities on behalf of the
Corporation.
"Periodic Offering" means an offering of Securities of a series from time
-----------------
to time the specific terms of which Securities, including without limitation the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Corporation upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
------
company or corporation, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
----------------
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
---------------
means the date fixed for such redemption by or pursuant to this Indenture.
5
<PAGE>
"Redemption Price," when used with respect to any Security to be redeemed,
----------------
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
-------------------
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
-------------------
vice president, any assistant vice president, any senior trust officer or
assistant trust officer, any trust officer, or any other officer associated with
the corporate trust department of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such person's knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
----------
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
--------------
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
----------------- ------------------
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
-------------------
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the case of such
principal, as such date may be advanced or extended as provided pursuant to the
terms of such Security and this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
-------------------
the date as of which this instrument was executed; provided, however, that in
-------- -------
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
-------
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
6
<PAGE>
"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.
Any certificate or opinion of an officer of the Corporation may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in
7
<PAGE>
the possession of the Corporation, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
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 instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Corporation.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
---
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Corporation, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than the signer's individual capacity,
such
8
<PAGE>
certificate or affidavit shall also constitute sufficient proof of the signer's
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Corporation
in reliance thereon, whether or not notation of such action is made upon such
Security.
The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series; provided that the
--------
Corporation may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take or revoke the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
--------
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Corporation from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Corporation, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction or to revoke
the same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
- --------
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record
9
<PAGE>
date. Nothing in this paragraph shall be construed to prevent the Trustee from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Corporation's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be sent to the
Corporation in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
----------
Date" and from time to time may change the Expiration Date to any earlier or
- ----
later day; provided that no such change shall be effective unless notice of the
--------
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and Corporation.
-----------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Corporation shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing (which may be made via facsimile) to or with the Trustee at its
Corporate Trust Office, Attention: Indenture Trust, or
(2) the Corporation by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Corporation addressed to it at the address of its principal office
specified in the first paragraph of this instrument, Attention: Treasurer,
or at any other address previously furnished in writing to the Trustee by
the Corporation.
10
<PAGE>
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
<PAGE>
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.
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
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity.
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
action taken pursuant to a Board Resolution, a copy of an appropriate record of
12
<PAGE>
such action shall be certified by the Secretary or an Assistant Secretary of the
Corporation and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
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 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].
13
<PAGE>
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ____% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue
interest shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Corporation maintained for that purpose in _________________, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable,
insert -; provided, however, that at the option of the Corporation payment of
-------- -------
interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
wire transfer at such place and to such account at a banking institution in the
United States as may be designated in writing to the Trustee at least sixteen
(16) days prior to the date for payment by the Person entitled thereto].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed under its corporate seal.
Dated as of Date of Authentication: EDISON INTERNATIONAL
By
-----------------------------------
Attest:
- ---------------------------------------
14
<PAGE>
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 Senior Indenture, dated as of ________, ______ (herein
called the "Indenture," which term shall have the meaning assigned to it in such
---------
instrument), between the Corporation and Harris Trust and Savings 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 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,
15
<PAGE>
<TABLE>
<CAPTION>
Redemption Price
for Redemption Price for
Redemption Through Redemption Otherwise Than
Operation of the Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------------ -------------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Corporation may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Corporation
(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
16
<PAGE>
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of all series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
of all series at the time Outstanding affected thereby (voting as one class).
The 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 reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Security
for the enforcement of any payment of principal hereof or any premium or
interest hereon on or after the respective due dates expressed herein.
17
<PAGE>
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.
Section 204. Form of Legend for Global Securities.
------------------------------------
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE
18
<PAGE>
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.
Harris Trust and Savings Bank,
As Trustee
By:
----------------------------------
Authorized Signatory
Dated: _________________
ARTICLE III.
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an 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 except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
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(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;
(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
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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;
(19) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
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(20) any other terms of the series.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the 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.
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.
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<PAGE>
At any time and from time to time after the execution and delivery of this
Indenture, the Corporation may deliver Securities of any series executed by the
Corporation to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities, provided, however, that in the case of Securities offered in a
-------- -------
Periodic Offering, the Trustee shall authenticate and deliver such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Corporation or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or terms of the Securities of the series
have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity with the provisions
of this Indenture, subject, in the case of Securities of a series offered
in a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Corporation in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Corporation enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the 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.
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<PAGE>
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Corporation of any of such
Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and the other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, in connection with the first authentication of Securities of such
series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Corporation in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Corporation shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
--------------------------------------------------- .
The Corporation shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office or in any other
office or agency of the Corporation in a Place of Payment being herein sometimes
referred to as the "Security Register") in which,
-----------------
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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 Security and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Corporation in a Place of Payment for that series,
the Corporation shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Corporation shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Corporation, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1106 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed, the Corporation shall not be required (A) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption and ending at the close of business on
the day of such mailing, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
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(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.
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
26
<PAGE>
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 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
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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.
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
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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 berequired 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 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
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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 such satisfaction and discharge.
Section 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
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determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V.
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
----------------
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is inapplicable to a particular series or is specifically deleted or
modified in the Board Resolution (or action taken pursuant thereto), 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 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
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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 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.
32
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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 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
33
<PAGE>
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 in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Corporation (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
-------- -------
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee
34
<PAGE>
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
Third: To the payment of the balance, if any, to the Corporation.
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) or (2), that series, shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the
35
<PAGE>
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) or (2), 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.
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.
36
<PAGE>
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.
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.
37
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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.
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
- -------
38
<PAGE>
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
-------
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(1) the Trustee may 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;
(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 reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled, at reasonable times previously notified to the
Corporation, to examine the relevant books, records and premises of the
Corporation, personally or by agent or attorney at the sole cost of the
Corporation and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation; and
39
<PAGE>
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Corporation.
Section 607. Compensation and Reimbursement.
------------------------------
The Corporation agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Corporation and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
and all loss, liability, damage, claim or expense, including taxes (other
than taxes based on the
40
<PAGE>
income of the Trustee) incurred without negligence, willful misconduct or
bad faith on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim whether asserted by the
Corporation, a Holder or any other Person or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all property and
funds held by it hereunder for any amount owing it or any predecessor Trustee
pursuant to this Section 607, except with respect to funds held in trust for the
benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Conflicting Interests.
---------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
41
<PAGE>
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
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
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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) 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
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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 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
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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.
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:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Harris Trust and Savings 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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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, at the Corporation's expense, 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, at the Corporation's expense, within 60 days after each
[_________] following the date of this Indenture, deliver to Holders a brief
report, dated as of such [_________], which complies with the provisions of such
Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee, at the Corporation's expense, 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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<PAGE>
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; and
(3) 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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<PAGE>
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
49
<PAGE>
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided that any
--------
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action pursuant
--------
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
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
50
<PAGE>
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or change the coin or currency in which any Security or any
premium or interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
-------- -------
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1006, or the
deletion of this proviso, in accordance with the requirements of Sections
611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter 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
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<PAGE>
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Corporation, to any such supplemental indenture
may be prepared and executed by the Corporation and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Corporation will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Corporation in respect of the Securities of that series and this
Indenture may be served. The Corporation will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Corporation shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Corporation hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Corporation may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Corporation of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such
52
<PAGE>
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 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
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<PAGE>
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 periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific
54
<PAGE>
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.
55
<PAGE>
The Trustee shall promptly notify the Corporation in writing of the
Securities selected for redemption as aforesaid and, in the case of any
Securities selected for partial redemption as aforesaid, the principal amount
thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number(s)) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series and of a
specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series and
of a specified tenor consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case;
and
56
<PAGE>
(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
57
<PAGE>
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
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
--------
58
<PAGE>
Securities to be so credited have not been previously so credited. The
Securities to be so credited shall be received and credited for such purpose by
the Trustee at the Redemption Price, as specified in the Securities so to be
redeemed, for redemption through operation of the sinking fund and the amount of
such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Corporation will deliver to the Trustee an 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
59
<PAGE>
to such Securities under Sections 304, 305, 306, 1002 and 1003 and with respect
to the Trustee under Section 607, (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (4) this Article. Subject to compliance
with this Article, Defeasance with respect to any Securities or any series of
Securities by the Corporation is permitted under this Section 1302
notwithstanding the prior exercise by the Corporation of its rights under
Section 1303 with 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
60
<PAGE>
of which its full faith and credit is pledged or (ii) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which
issued the foreign currency in which such Securities are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which,
in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect
to any Government Obligation which is specified in clause (x) above and
held by such bank for the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of or interest on any
Government Obligation which is so specified and held, provided that (except
--------
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the Government Obligation or
the specific payment of principal or interest evidenced by such depositary
receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities 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) as
the Trustee may determine, to the Holders of such Securities, of all sums due
and to become due thereon in respect of principal and any premium and interest,
but money so held in trust need not be segregated from other funds except to the
extent required by law.
The Corporation shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1304
61
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or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Corporation from time to time upon Company Request any
money or Government Obligations held by it as provided in Section 1304 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
ARTICLE XIV.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1401. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
62
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In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
EDISON INTERNATIONAL
By _________________________________
Attest:
____________________________
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By _________________________________
Authorized Signatory
Attest:
____________________________
63
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EXHIBIT 4.2
EDISON INTERNATIONAL
TO
The CHASE MANHATTAN BANK
Trustee
____________________________________________
Subordinated Indenture
Dated as of _________, ______
____________________________________________
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
<S> <C>
Section 310(a)(1).......................................... 609
(a)(2).......................................... 609
(a)(3).......................................... Not Applicable
(a)(4).......................................... Not Applicable
(b)............................................. 608
610
Section 311(a)............................................. 613
(b)............................................. 613
Section 312(a)............................................. 701
702
(b)............................................. 702
(c)............................................. 702
Section 313(a)............................................. 703
(b)............................................. 703
(c)............................................. 703
(d)............................................. 703
Section 314(a)............................................. 704
(a)(4).......................................... 101
1005
(b)............................................. Not Applicable
(c)(1).......................................... 102
(c)(2).......................................... 102
(c)(3).......................................... Not Applicable
(d)............................................. Not Applicable
(e)............................................. 102
Section 315(a)............................................. 601
(b)............................................. 602
(c)............................................. 601
(d)............................................. 601
(e)............................................. 514
Section 316(a)............................................. 101
(a)(1)(A)....................................... 502
512
(a)(1)(B)....................................... 513
(a)(2).......................................... Not Applicable
(b)............................................. 508
(c)............................................. 104
Section 317(a)(1).......................................... 503
(a)(2).......................................... 504
(b)............................................. 1003
Section 318(a)............................................. 107
- -------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties.............................................................................. 1
Recitals of the Corporation.......................................................... 1
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................. 1
Section 101. Definitions......................................................... 1
Section 102. Compliance Certificates and Opinions................................ 7
Section 103. Form of Documents Delivered to Trustee.............................. 7
Section 104. Acts of Holders; Record Dates....................................... 8
Section 105. Notices, Etc., to Trustee and Corporation.......................... 10
Section 106. Notice to Holders; Waiver.......................................... 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
ARTICLE IV. SATISFACTION AND DISCHARGE............................................. 29
Section 401. Satisfaction and Discharge of Indenture............................ 29
</TABLE>
ii
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<TABLE>
<S> <C>
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................. 32
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.... 33
Section 504. Trustee May File Proofs of Claim................................... 33
Section 505. Trustee May Enforce Claims Without Possession of Securities........ 34
Section 506. Application of Money Collected..................................... 34
Section 507. Limitation on Suits................................................ 34
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest........................................................... 35
Section 509. Restoration of Rights and Remedies................................. 35
Section 510. Rights and Remedies Cumulative..................................... 35
Section 511. Delay or Omission Not Waiver....................................... 36
Section 512. Control By Holders................................................. 36
Section 513. Waiver of Past Defaults............................................ 36
Section 514. Undertaking for Costs.............................................. 37
Section 515. Waiver of Stay or Extension Laws................................... 37
ARTICLE VI. THE TRUSTEE............................................................ 37
Section 601. Certain Duties and Responsibilities................................ 37
Section 602. Notice of Defaults................................................. 38
Section 603. Certain Rights of Trustee.......................................... 38
Section 604. Not Responsible for Recitals or Issuance of Securities............. 39
Section 605. May Hold Securities................................................ 39
Section 606. Money Held in Trust................................................ 39
Section 607. Compensation and Reimbursement..................................... 39
Section 608. Conflicting Interests.............................................. 40
Section 609. Corporate Trustee Required; Eligibility............................ 40
Section 610. Resignation and Removal; Appointment of Successor.................. 41
Section 611. Acceptance of Appointment by Successor............................. 42
Section 612. Merger, Conversion, Consolidation or Succession to Business........ 43
Section 613. Preferential Collection of Claims Against Corporation.............. 43
Section 614. Appointment of Authenticating Agent................................ 43
Section 615. Trustee's Application for Instructions from the Corporation........ 45
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION................. 45
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders...... 45
Section 702. Preservation of Information; Communications to Holders............. 45
Section 703. Reports by Trustee................................................. 46
Section 704. Reports by Corporation............................................. 46
</TABLE>
iii
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<TABLE>
<S> <C>
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER........................ 46
Section 801. Corporation May Consolidate, Etc., Only on Certain Terms........... 46
Section 802. Successor Substituted.............................................. 47
ARTICLE IX. SUPPLEMENTAL INDENTURES................................................ 48
Section 901. Supplemental Indentures Without Consent of Holders................. 48
Section 902. Supplemental Indentures With Consent of Holders.................... 49
Section 903. Execution of Supplemental Indentures............................... 50
Section 904. Effect of Supplemental Indentures.................................. 50
Section 905. Conformity with Trust Indenture Act................................ 50
Section 906. Reference in Securities to Supplemental Indentures................. 50
Section 907. Subordination Unimpaired........................................... 51
ARTICLE X. COVENANTS............................................................... 51
Section 1001. Payment of Principal, Premium and Interest........................ 51
Section 1002. Maintenance of Office or Agency................................... 51
Section 1003. Money for Securities Payments to Be Held in Trust................. 51
Section 1004. Corporate Existence............................................... 52
Section 1005. Statement by Officers as to Default............................... 53
Section 1006. Waiver of Certain Covenants....................................... 53
Section 1007. Calculation of Original Issue Discount............................ 53
ARTICLE XI. REDEMPTION OF SECURITIES............................................... 53
Section 1101. Applicability of Article.......................................... 53
Section 1102. Election to Redeem; Notice to Trustee............................. 53
Section 1103. Selection by Trustee of Securities to Be Redeemed................. 54
Section 1104. Notice of Redemption.............................................. 54
Section 1105. Deposit of Redemption Price....................................... 56
Section 1106. Securities Payable on Redemption Date............................. 56
Section 1107. Securities Redeemed in Part....................................... 56
ARTICLE XII. SINKING FUNDS......................................................... 57
Section 1201. Applicability of Article.......................................... 57
Section 1202. Satisfaction of Sinking Fund Payments with Securities............. 57
Section 1203. Redemption of Securities for Sinking Fund......................... 57
ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE................................... 58
Section 1301. Applicability of Article.......................................... 58
Section 1302. Defeasance and Discharge.......................................... 58
Section 1303. Covenant Defeasance............................................... 58
Section 1304. Conditions to Defeasance or Covenant Defeasance................... 59
Section 1305. Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions.......................................... 60
ARTICLE XIV. SUBORDINATION......................................................... 60
Section 1401. Securities Subordinated to Senior Indebtedness.................... 60
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
Section 1402. Disputes with Holders of Certain Senior Indebtedness.............. 62
Section 1403. Subrogation....................................................... 63
Section 1404. Obligation of Corporation Unconditional........................... 63
Section 1405. Payments on Securities Permitted.................................. 64
Section 1406. Effectuation of Subordination by Trustee.......................... 64
Section 1407. Knowledge of Trustee.............................................. 64
Section 1408. Trustee May Hold Senior Indebtedness.............................. 65
Section 1409. Rights of Holders of Senior Indebtedness Not Impaired............. 65
Section 1410. Trust Moneys Not Subordinated..................................... 65
Section 1411. Article Applicable to Paying Agents............................... 65
Section 1412. Trustee; Compensation Not Prejudiced.............................. 65
ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS........ 66
Section 1501. Indenture and Securities Solely Corporate Obligations............. 66
Testimonium......................................................................... 65
Signatures and Seals................................................................ 65
</TABLE>
v
<PAGE>
INDENTURE, dated as of __________, ______, 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
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
<PAGE>
"Act," when used with respect to any Holder, has the meaning specified
---
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
--------------------
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Corporation
------------------
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
----------------
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means a day
------------
other than (i) a Saturday or a Sunday, (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 455 W. 33rd Street, 15th Floor,
New York, NY 10001.
"corporation" means a corporation, association, company, joint-stock
-----------
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
-------------------
"Defaulted Interest" has the meaning specified in Section 307.
------------------
2
<PAGE>
"Defeasance" has the meaning specified in Section 1302.
----------
"Depositary" means, with respect to Securities of any series issuable in
----------
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
----------------
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
------------
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
---------------
"Global Security" means a Security that evidences all or part of the
---------------
Securities of any series which is issued to a Depositary or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
---------------------
"Holder" means a Person in whose name a Security is registered in the
------
Security Register.
"Indenture" means this instrument as originally executed and as it may from
---------
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount Security
--------
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
---------------------
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
----------------------
statute successor thereto, in each case as amended from time to time.
"Maturity," when used with respect to any Security, means the date on which
--------
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
-----------------
501(4).
"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
3
<PAGE>
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 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
4
<PAGE>
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.
"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,
5
<PAGE>
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.
"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.
6
<PAGE>
"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.
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
7
<PAGE>
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.
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,
8
<PAGE>
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Corporation
in reliance thereon, whether or not notation of such action is made upon such
Security.
The Corporation may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series; provided that the
--------
Corporation may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take or revoke the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
--------
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Corporation from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Corporation, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction or to revoke
the same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
- --------
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record 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
9
<PAGE>
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 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
10
<PAGE>
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.
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.
11
<PAGE>
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, except that the rights,
duties, indemnities and immunities of the Trustee shall be governed by the laws
of the State of New York, without regard to conflicts of laws principles
thereof.
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
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of any Security which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity.
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
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.
12
<PAGE>
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
------------------------
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
EDISON INTERNATIONAL
_____________________
<TABLE>
<CAPTION>
<S> <C>
$
-------
No. CUSIP No.
------- ---
</TABLE>
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 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
13
<PAGE>
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:
____________________________________
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
14
<PAGE>
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,
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ______ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after _____________], as a whole or in part, at the
election of the Corporation, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12- month
period beginning ________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price for Redemption Price for
Redemption Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ---------------------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with
15
<PAGE>
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Corporation may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Corporation
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on __________ in each year beginning with the year _______ and ending
with the year ______ of [if applicable, insert - not less than $___________
("mandatory sinking fund") and not more than] $____________ aggregate principal
- ------------------------
amount of Securities of this series. Securities of this series acquired or
redeemed by the Corporation otherwise than through [if applicable, insert -
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert - , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to [insert formula for determining the
amount]. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Corporation's obligations in respect of the payment of
the principal of and premium and interest, if any, on the Securities of this
series shall terminate.]
16
<PAGE>
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 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.
17
<PAGE>
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:
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.
18
<PAGE>
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 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
19
<PAGE>
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;
(12) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Corporation or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election
20
<PAGE>
is to be made and the amount so payable (or the manner in which such amount
shall be determined);
(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(16) if either or both of Sections 1302 and 1303 do not apply to any
Securities of the series;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositary or Depositaries for such
Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in
Section 204 and any circumstances in addition to or in lieu of those set
forth in Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) any addition, modification or deletion of any Events of Default
or covenants provided with respect to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant
to Section 502;
(19) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(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.
21
<PAGE>
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.
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
22
<PAGE>
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or terms of the Securities of the series
have been established by or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity with the provisions
of this Indenture, subject, in the case of Securities of a series offered
in a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(3) that such Securities, when 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.
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
23
<PAGE>
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 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.
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<PAGE>
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 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
25
<PAGE>
Act at a time when the Depositary is required to be so registered to act as
such Depositary and no successor Depositary shall have been appointed by
the Corporation within 90 days after it became aware of such cessation, or
(C) there shall exist such circumstances, if any, in addition to or in lieu
of the foregoing as have been specified for this purpose as contemplated by
Section 301. Notwithstanding the foregoing, the Corporation may at any time
in its sole discretion determine that Securities issued in the form of a
Global Security shall no longer be represented in whole or in part by such
Global Security, and the Trustee, upon receipt of a Company Order therefor,
shall authenticate and deliver definitive Securities in exchange in whole
or in part for such Global Security.
(3) Subject to Clause (2) above, any exchange or transfer of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for or upon transfer of a Global Security or
any portion thereof shall be registered in such names as the Depositary for
such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1106 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Corporation
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Corporation and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Corporation or the Trustee that such Security has been acquired by a bona
fide purchaser, the Corporation shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Corporation in its discretion
may, instead of issuing a new Security, pay such Security.
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
26
<PAGE>
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any interest on any Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
------------------
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Corporation, at
its election in each case, as provided in Clause (1) or (2) below:
(1) The Corporation may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Corporation
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Corporation shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Corporation of such
Special Record Date and, in the name and at the expense of the Corporation,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given to each Holder of Securities
of such series in the manner set forth in Section 106, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
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<PAGE>
(2) The Corporation may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange, if any, on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Corporation, the Trustee nor any agent of the Corporation or the Trustee shall
be affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Corporation may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Corporation may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Corporation has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in its customary manner or
as directed by a Company Order; provided, however, that the Trustee shall not be
-------- -------
required to destroy such canceled Securities.
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
28
<PAGE>
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Corporation, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Corporation and
thereafter repaid to the Corporation or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Corporation,
and the Corporation, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose (i) money in 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
29
<PAGE>
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.
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
30
<PAGE>
make payment following such deferral, if such deferral has been elected
pursuant to the terms of the Securities; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the making of any sinking fund payment, when and as due
by the terms of a Security of that series, and continuance of such default
for a period of 60 days; or
(4) default in the performance, or breach, of any covenant of the
Corporation in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of series of Securities other than that series), and continuance of
such default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Corporation by the Trustee or to
the Corporation and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder, unless the
-----------------
Trustee, or the Trustee and the Holders of a principal amount of Securities
of such series not less than the principal amount of Securities the Holders
of which gave such notice, as the case may be, shall agree in writing to an
extension of such period prior to its expiration; provided, however, that
-------- -------
the Trustee, or the Trustee and the Holders of such principal amount of
Securities of such series, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action is initiated by
the Corporation within such period and is being diligently pursued; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Corporation in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Corporation a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Corporation under any applicable
federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Corporation or of any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the continuance of any such
decree or 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
31
<PAGE>
law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Corporation or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the authorization of any such action by the Board of Directors; or
(7) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Corporation (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the 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.
32
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No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Corporation 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 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
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Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
--------
however, that the Trustee may, on behalf of the Holders, vote for the election
- -------
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: 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;
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(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) and (2), 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;
(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) and (2), 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
35
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other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control By Holders.
------------------
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series; provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine
that the proceeding so directed would involve the Trustee in personal
liability.
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
36
<PAGE>
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of the series affected.
Upon any such waiver, such default shall cease to exist and be deemed not
to have occurred, and any Event of Default arising therefrom shall be deemed to
have been cured and not to have occurred, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or impair any
right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs, including legal fees and expenses of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this
--------
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in (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
37
<PAGE>
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
--------
however, that in the case of any default of the character specified in Section
- -------
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
-------
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note or other paper or document believed
by it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Corporation mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein, and any resolution of the Board of
Directors shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established 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,
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<PAGE>
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of Securities or the proceeds thereof.
Section 605. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Corporation.
Section 607. Compensation and Reimbursement.
------------------------------
The Corporation agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Corporation and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, willful
misconduct or bad faith; and
39
<PAGE>
(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
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.
40
<PAGE>
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Corporation. 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
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
41
<PAGE>
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) 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
42
<PAGE>
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 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
43
<PAGE>
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.
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:_________________________________
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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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
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The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Corporation 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).
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:
46
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(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 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
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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, 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
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(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 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
49
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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.
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.
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Section 907. Subordination Unimpaired
------------------------
This Indenture may not be amended to alter the subordination of any of
the Outstanding Securities without the written consent of each holder of Senior
Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium and Interest
------------------------------------------
The Corporation covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency
-------------------------------
The Corporation will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Corporation in respect of the Securities of that series and this
Indenture may be served. The Corporation will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Corporation shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Corporation hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Corporation may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Corporation of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such
purposes. The Corporation will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
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
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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 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.
52
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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 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
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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.
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.
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All notices of redemption shall identify the Securities to be redeemed
(including CUSIP number(s)) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series and of a
specified tenor consisting of more than a single Security are to be
redeemed, the identification (and, in the case of partial redemption of any
such Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series and
of a specified tenor consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed;
(4) that on the Redemption Date the Redemption Price, together with
accrued interest, if any, to the Redemption Date, will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price and accrued interest, if any, unless it
shall have been specified as contemplated by Section 301 with respect to
such Securities that such surrender shall not be required;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) such other matters as the Corporation shall deem desirable or
appropriate.
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.
55
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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 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.
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ARTICLE XII.
SINKING FUNDS
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a "mandatory sinking fund payment,"
------------------------------
and any payment in excess of such minimum amount provided for by the terms of
such Securities is herein referred to as an "optional sinking fund payment." If
-----------------------------
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Corporation (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Corporation pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
--------
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Corporation will deliver to the Trustee an 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.
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ARTICLE XIII.
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Applicability of Article.
------------------------
Unless, pursuant to Section 301, provision is made that either or both
of (A) defeasance of any Securities or any series of Securities under Section
1302 and (B) covenant defeasance of any Securities or any series of Securities
under Section 1303 shall not apply to such Securities of a series, then the
provisions of either or both of Sections 1302 and Section 1303, as the case may
be, together with Sections 1304 and 1305, shall be applicable to the Outstanding
Securities of such series upon compliance with the conditions set forth below in
this Article.
Section 1302. Defeasance and Discharge.
------------------------
The Corporation may cause itself to be discharged from its obligations
with respect to any Securities or any series of Securities on and after the date
the conditions set forth in Section 1304 are satisfied (hereinafter called
Defeasance"). For this purpose, such Defeasance means that the Corporation
- -----------
shall be deemed to have paid and discharged the entire indebtedness represented
by such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Corporation, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when payments are due, (2) the
Corporation's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003 and with respect to the Trustee under Section 607, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(4) this Article. Subject to compliance with this Article, Defeasance with
respect to any Securities or any series of Securities by the Corporation is
permitted under this Section 1302 notwithstanding the prior exercise by the
Corporation of its rights under Section 1303 with 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
58
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herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Corporation shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of
any payment, money in an amount, or (C) a combination thereof, sufficient,
in the case of (B) or (C), in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated Maturities
or on any Redemption Date established pursuant to Clause (3) below, in
accordance with the terms of this Indenture and such Securities. As used
herein, "Government Obligation" means (x) any security which is (i) a
---------------------
direct obligation of the United States of America or the government which
issued the foreign currency in which such Securities are payable, for the
payment of which its full faith and credit is pledged or (ii) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which
issued the foreign currency in which such Securities are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which,
in either case (i) or (ii), is not callable or redeemable at the option of
the issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with respect
to any Government Obligation which is specified in clause (x) above and
held by such bank for the account of the holder of such depositary receipt,
or with respect to any specific payment of principal of or interest on any
Government Obligation which is so specified and held, provided that (except
--------
as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the Government Obligation or
the specific payment of principal or interest evidenced by such depositary
receipt.
(2) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(5) and
(6), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied
until after such 90th day).
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(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.
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
60
<PAGE>
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 account of the
principal of or any premium or interest on the indebtedness evidenced by
the Securities, including, without limitation, any payments made pursuant
to Article Eleven or Article Twelve;
(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,
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property or securities, including any such payment or distribution which
may be payable or deliverable by reason of the payment of any other
indebtedness of the Corporation being subordinated to the payment of such
Securities, in respect of principal of or any premium or interest on any of
the Securities or in connection with the repurchase by the Corporation of
any of the Securities, shall be received by the Trustee or the Holders of
any of the Securities when such payment or distribution is prohibited
pursuant to this Section, such payment or distribution shall be paid over
to the holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture pursuant
to which any instruments evidencing any such Senior Indebtedness may have
been issued, ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment
or distribution (or provision therefor) to the holders of such Senior
Indebtedness.
Notwithstanding the foregoing, at any time after the 90th day following
the date of deposit of money or Government Obligations pursuant to Section 1304
(provided all other conditions set out in such Section shall have been
satisfied) the funds so deposited and any interest thereon will not be subject
to any rights of holders of Senior Indebtedness including, without limitation,
those arising under this Article.
For purposes of this Article Fourteen, the words "cash, property or
-----------------
securities" shall not be deemed to include shares of stock of the Corporation as
- ----------
reorganized or readjusted, or securities of the Corporation or any other Person
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article with respect to
the Securities to the payment of all Senior Indebtedness which may at the time
be outstanding; provided that (i) the indebtedness or guarantee of indebtedness,
--------
as the case may be, that constitutes Senior Indebtedness is assumed by the
Person, if any, resulting from any such reorganization or readjustment, and (ii)
the rights of the holders of the Senior Indebtedness are not, without the
consent of each such holder adversely affected thereby, altered by such
reorganization or readjustment. The consolidation of the Corporation with, or
the merger of the Corporation into, another Person or the liquidation or
dissolution of the Corporation following the conveyance or transfer of its
property as an entirety, or substantially as an entirety, to another Person upon
the terms and conditions provided for in Article Eight hereof shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section if such other Person shall, as part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article
Eight hereof.
Section 1402. Disputes with Holders of Certain Senior Indebtedness.
----------------------------------------------------
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
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such obligation and (ii) either (A) no final judgment relating to such dispute
shall have been issued against the Corporation which is in full force and effect
and is not subject to further review, including a judgment that has become final
by reason of the expiration of the time within which a party may seek further
appeal or review, and (B) in the event of a judgment that is subject to further
review or appeal has been issued, the Corporation shall in good faith be
prosecuting an appeal or other proceeding for review and a stay of execution
shall have been obtained pending such appeal or review.
Section 1403. Subrogation.
-----------
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated (equally and ratably with the holders of
all obligations of the Corporation which by their express terms are subordinated
to Senior Indebtedness of the Corporation to the same extent as the Securities
are subordinated and which are entitled to like rights of subrogation) to the
rights of the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Corporation applicable to
the Senior Indebtedness until all amounts owing on the Securities shall be paid
in full, and as between the Corporation, its creditors other than holders of
such Senior Indebtedness and the Holders, no such payment or distribution made
to the holders of Senior Indebtedness by virtue of this Article that otherwise
would have been made to the Holders shall be deemed to be a payment by the
Corporation on account of such Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
Senior Indebtedness, on the other hand.
Section 1404. Obligation of Corporation Unconditional.
---------------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Corporation, its
creditors other than the holders of Senior Indebtedness and the Holders, the
obligation of the Corporation, which is absolute and unconditional, to pay to
the Holders the principal of and any premium or interest on the Securities as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders and
creditors of the Corporation other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities of the
Corporation received upon the exercise of any such remedy.
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
63
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or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a trustee or
representative on behalf of any such holder or holders. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and, if
such evidence is not furnished, the Trustee may defer payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 1405. Payments on Securities Permitted.
--------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities shall affect the obligations of the Corporation to make, or
prevent the Corporation from making, payment of the principal of or any premium
or interest on the Securities in accordance with the provisions hereof and
thereof, except as otherwise provided in this Article.
Section 1406. Effectuation of Subordination by Trustee.
----------------------------------------
Each Holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee in his, her or its behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his, her or its attorney-in-fact, as the case
may be, for any and all such purposes.
Section 1407. Knowledge of Trustee.
--------------------
The Corporation shall give prompt written notice to the Trustee of any
fact known to the Corporation which would prohibit the making of any payment of
moneys to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article. Notwithstanding the provisions of this Article or
any other provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment of moneys to or by the Trustee, or the taking of any other action by the
Trustee, unless 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
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which they were received and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to or on or
after such date.
Section 1408. Trustee May Hold Senior Indebtedness.
------------------------------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness at the
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Section 1409. Rights of Holders of Senior Indebtedness Not Impaired.
-----------------------------------------------------
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Corporation or by
any noncompliance by the Corporation with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with.
With respect to the holders of Senior Indebtedness, (i) the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture; (ii) the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Indenture; (iii) no implied covenants or obligations shall be read into this
Indenture against the Trustee; and (iv) the Trustee shall not be deemed to be a
fiduciary as to such holders.
Section 1410. Trust Moneys Not Subordinated.
-----------------------------
Notwithstanding anything contained herein to the contrary, payments from
money or Government Obligations held in trust under Article Four or Article
Thirteen by the Trustee for the payment of principal of and any premium or
interest on the Securities of any series shall not be subordinated to the prior
payment of any Senior Indebtedness of the Corporation or subject to the
restrictions set forth in this Article and none of the Holders shall be
obligated to pay over any such amount to the Corporation or any holder of Senior
Indebtedness or any other creditor of the Corporation.
Section 1411. Article Applicable to Paying Agents.
-----------------------------------
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.
65
<PAGE>
ARTICLE XV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1501. Indenture and Securities Solely Corporate Obligations.
-----------------------------------------------------
No recourse for the payment of the principal of or any premium or
interest on any Security, or for any claim based thereon or otherwise in respect
thereof, and no recourse under or upon any obligation, covenant or agreement of
the Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
66
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
EDISON INTERNATIONAL
By ____________________________
Attest:
______________________________
THE CHASE MANHATTAN BANK,
as Trustee
By _________________________
Authorized Signatory
Attest:
______________________________
67
<PAGE>
GUARANTEE AGREEMENT
Between
EDISON INTERNATIONAL
(as Guarantor)
and
THE CHASE MANHATTAN BANK
(as Trustee)
dated as of
[_________] [___], [____]
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
<S> <C>
310(a).............................................4.1(a)
310(b..............................................4.1(c), 2.8
310(c).............................................Inapplicable
311(a).............................................2.2(b)
311(b).............................................2.2(b)
311(c).............................................Inapplicable
312(a).............................................2.2(a)
312(b).............................................2.2(b)
313................................................2.3
314(a).............................................2.4
314(b).............................................Inapplicable
314(c).............................................2.5
314(d).............................................Inapplicable
314(e).............................................1.1, 2.5, 3.2
314(f).............................................2.1, 3.2
315(a).............................................3.1(d)
315(b).............................................2.7
315(c).............................................3.1
315(d).............................................3.1(d)
316(a).............................................1.1, 2.6, 5.4
316(b).............................................5.3
316(c).............................................8.2
317(a).............................................Inapplicable
317(b).............................................Inapplicable
318(a).............................................2.1(b)
318(b).............................................2.1
318(c).............................................2.1(a)
</TABLE>
* This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
DEFINITIONS
<S> <C> <C>
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
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
Page
<S> <C> <C>
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
</TABLE>
iii
<PAGE>
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of [_________] [___], [____], 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 [_________] [___], [____] (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 $[___] aggregate Liquidation Amount (as defined in the Trust Agreement)
of its [___]% Cumulative Quarterly Income Preferred Securities, Series [___]
(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;
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.
1
<PAGE>
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)
8
<PAGE>
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
9
<PAGE>
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;
10
<PAGE>
(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
11
<PAGE>
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.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Successors and Assigns. All guarantees and agreements
----------------------
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers,
12
<PAGE>
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
with a copy to:
The Chase Manhattan Bank
455 West 33/rd/ Street, 15/th/ Floor
New York, New York 10001
Facsimile No.: 212-946-8177/8178
Attention: Capital Markets Fiduciary Services
zzz
13
<PAGE>
(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 33/rd/ Street, 15/th/ 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
14
<PAGE>
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
Section 8.6 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
-------------
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
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.
15
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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:
16
<PAGE>
EXHIBIT 4.8
TRUST AGREEMENT
---------------
This TRUST AGREEMENT, dated as of June 30, 1999 (this "Trust Agreement"),
among (i) EDISON INTERNATIONAL, a California corporation, as Depositor (the
"Depositor"), (ii) CHASE MANHATTAN BANK DELAWARE INC., a Delaware banking
corporation, as Trustee (the "Delaware Trustee"), and (iii) THE CHASE MANHATTAN
BANK, a New York banking corporation, as Trustee (jointly with the Delaware
Trustee, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as
"EIX Trust I" in which name the Trustees, or the Depositor to the extent
provided herein, may engage in the transactions contemplated hereby, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets
over to the Trust the sum of $10, which amount shall constitute the initial
trust estate. It is the intention of the parties hereto that the Trust created
hereby constitutes a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that this
------- -- ----
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act.
3. The Depositor, the Trustees and certain other trustees to
be hereafter appointed will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery of any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the Depositor of the Trust, (i) to file with the Securities
and Exchange Commission (the "Commission") and execute, in each case on behalf
of the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the Preferred
Securities of the Trust and certain other securities, (b) any Prospectus or
Preliminary Prospectus relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or any other national stock exchange or The
Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities
<PAGE>
or blue sky laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable and (iv) to execute on behalf of the Trust that
certain Underwriting Agreement relating to the Preferred Securities, among the
Trust, the Depositor, and the several Underwriters named therein, substantially
in the form included as an exhibit to the 1933 Act Registration Statement. In
connection with the filings referred to above, the Depositor hereby constitutes
and appoints Mary C. Simpson, George T. Tabata, and Kenneth S. Stewart, as its
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for the Depositor or in the Depositor's name, place and
stead, in its capacity as Depositor of the Trust, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto, and any other documents in connection therewith, with the Commission,
the Exchange and administrators of state securities or blue sky laws, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Depositor
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be two (2) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty (30) days' prior notice
to the Depositor.
7. This Trust Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
8. The Delaware Trustee shall not have any of the powers or
duties of the Trustees set forth herein, except as required under the Business
Trust Act. The Delaware Trustee shall be a Trustee hereunder for the sole and
limited purpose of fulfilling the requirements of (S) 3807(a) of the Business
Trust Act.
9. The Trust may be dissolved and terminated before the issuance
of the Preferred Securities at the election of the Depositor.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
EDISON INTERNATIONAL, as Depositor
By: /s/ Theodore F. Craver, Jr.
---------------------------------------------
Name: Theodore F. Craver, Jr.
Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Alfia Monastra
---------------------------------------------
Name: Alfia Monastra
Title: Assistant Vice President
CHASE MANHATTAN BANK DELAWARE, as Trustee
By: /s/ Dennis Kelly
---------------------------------------------
Name: Dennis Kelly
Title: Assistant Vice President
3
<PAGE>
EXHIBIT 4.9
TRUST AGREEMENT
---------------
This TRUST AGREEMENT, dated as of June 30, 1999 (this "Trust Agreement"),
among (i) EDISON INTERNATIONAL, a California corporation, as Depositor (the
"Depositor"), (ii) CHASE MANHATTAN BANK DELAWARE INC., a Delaware banking
corporation, as Trustee (the "Delaware Trustee"), and (iii) THE CHASE MANHATTAN
BANK, a New York banking corporation, as Trustee (jointly with the Delaware
Trustee, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "EIX
Trust II" in which name the Trustees, or the Depositor to the extent provided
herein, may engage in the transactions contemplated hereby, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets over to
the Trust the sum of $10, which amount shall constitute the initial trust
estate. It is the intention of the parties hereto that the Trust created hereby
constitutes a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that this document
------- -- ---
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor, the Trustees and certain other trustees to be
hereafter appointed will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery of any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the Depositor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the Preferred
Securities of the Trust and certain other securities, (b) any Prospectus or
Preliminary Prospectus relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or any other national stock exchange or The
Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities
<PAGE>
or blue sky laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable and (iv) to execute on behalf of the Trust that
certain Underwriting Agreement relating to the Preferred Securities, among the
Trust, the Depositor, and the several Underwriters named therein, substantially
in the form included as an exhibit to the 1933 Act Registration Statement. In
connection with the filings referred to above, the Depositor hereby constitutes
and appoints Mary C. Simpson, George T. Tabata, and Kenneth S. Stewart, as its
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for the Depositor or in the Depositor's name, place and
stead, in its capacity as Depositor of the Trust, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto, and any other documents in connection therewith, with the Commission,
the Exchange and administrators of state securities or blue sky laws, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Depositor
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
8. The Delaware Trustee shall not have any of the powers or duties
of the Trustees set forth herein, except as required under the Business Trust
Act. The Delaware Trustee shall be a Trustee hereunder for the sole and limited
purpose of fulfilling the requirements of (S) 3807(a) of the Business Trust Act.
9. The Trust may be dissolved and terminated before the issuance of
the Preferred Securities at the election of the Depositor.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
EDISON INTERNATIONAL, as Depositor
By: /s/ Theodore F. Craver, Jr.
----------------------------------------------
Name: Theodore F. Craver, Jr.
Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Alfia Monastra
----------------------------------------------
Name: Alfia Monastra
Title: Assistant Vice President
CHASE MANHATTAN BANK DELAWARE, as Trustee
By: /s/ Dennis Kelly
----------------------------------------------
Name: Dennis Kelly
Title: Assistant Vice President
3
<PAGE>
TRUST AGREEMENT
---------------
This TRUST AGREEMENT, dated as of June 30, 1999 (this "Trust
Agreement"), among (i) EDISON INTERNATIONAL, a California corporation, as
Depositor (the "Depositor"), (ii) CHASE MANHATTAN BANK DELAWARE INC., a Delaware
banking corporation, as Trustee (the "Delaware Trustee"), and (iii) THE CHASE
MANHATTAN BANK, a New York banking corporation, as Trustee (jointly with the
Delaware Trustee, the "Trustees"). The Depositor and the Trustees hereby agree
as follows:
1. The trust created hereby (the "Trust") shall be known as "EIX Trust
III" in which name the Trustees, or the Depositor to the extent provided herein,
may engage in the transactions contemplated hereby, make and execute contracts,
and sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets over to the
Trust the sum of $10, which amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitutes
a business trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C.(S)3801, et seq. (the "Business Trust Act"), and that this document
------ -- ---
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Depositor, the Trustees and certain other trustees to be
hereafter appointed will enter into an amended and restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an
exhibit to the 1933 Act Registration Statement (as defined below), to provide
for the contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery of any licenses,
consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the Depositor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the Preferred
Securities of the Trust and certain other securities, (b) any Prospectus or
Preliminary Prospectus relating to the Preferred Securities required to be filed
under the 1933 Act, and (c) a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or any other national stock exchange or The
Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities
<PAGE>
or blue sky laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable and (iv) to execute on behalf of the Trust that
certain Underwriting Agreement relating to the Preferred Securities, among the
Trust, the Depositor, and the several Underwriters named therein, substantially
in the form included as an exhibit to the 1933 Act Registration Statement. In
connection with the filings referred to above, the Depositor hereby constitutes
and appoints Mary C. Simpson, George T. Tabata, and Kenneth S. Stewart, as its
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for the Depositor or in the Depositor's name, place and
stead, in its capacity as Depositor of the Trust, to sign any and all amendments
(including post-effective amendments) to the 1933 Act Registration Statement and
the 1934 Act Registration Statement and to file the same, with all exhibits
thereto, and any other documents in connection therewith, with the Commission,
the Exchange and administrators of state securities or blue sky laws, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Depositor
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their respective substitute or
substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
8. The Delaware Trustee shall not have any of the powers or duties of
the Trustees set forth herein, except as required under the Business Trust Act.
The Delaware Trustee shall be a Trustee hereunder for the sole and limited
purpose of fulfilling the requirements of (S) 3807(a) of the Business Trust Act.
9. The Trust may be dissolved and terminated before the issuance of the
Preferred Securities at the election of the Depositor.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
EDISON INTERNATIONAL, as Depositor
By: /s/ Theodore F. Craver, Jr.
------------------------------------------
Name: Theodore F. Craver, Jr.
Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Alfia Monastra
-----------------------------------------
Name: Alfia Monastra
Title: Assistant Vice President
CHASE MANHATTAN BANK DELAWARE, as Trustee
By: /s/ Dennis Kelly
-----------------------------------------
Name: Dennis Kelly
Title: Assistant Vice President
3
<PAGE>
EXHIBIT 4.11
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 [________] [___], [____]
EIX TRUST [ ]
<PAGE>
EIX TRUST [ ]
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- ------------------ --------------------
<S> <C>
(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
</TABLE>
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
<TABLE>
<CAPTION>
<S> <C> <C>
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
</TABLE>
i
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C> <C>
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
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C> <C>
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 Against 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
</TABLE>
iii
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
<S> <C> <C>
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, Guarantee and Indenture................. 53
</TABLE>
iv
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of [________] [___],
[____], 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)
[____________], [_________] and [_________], 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 [________], 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 [________], 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;
<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 [____] 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.
3
<PAGE>
"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 455
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 455 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. (S)(S)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
4
<PAGE>
(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 [___],
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
5
<PAGE>
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 ___%
Junior Subordinated Deferrable Interest Notes, Series [___], 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.
6
<PAGE>
"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).
7
<PAGE>
"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 [___], 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 [________]
[___], [____], 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 [ ]," 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
[address], Wilmington, Delaware 198[__], 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 [address], Wilmington,
Delaware 198[__].
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 expenses paid by such Trustee. The Depositor shall make no claim upon
the Trust Property for the payment of such expenses.
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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 ___________ Preferred Securities having an
aggregate Liquidation Amount of $___________, against receipt by the Property
Trustee of the aggregate purchase price of such Preferred Securities of
$___________. 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 _______________
Preferred Securities having an aggregate Liquidation Amount of up to
$___________, 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 _______ Common Securities having an
aggregate Liquidation Amount of $____________ 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 $_________,
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 $_________
(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 _________ Common Securities
having an aggregate Liquidation Amount of up to $____________ (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 (in the case of
such number) to the nearest whole number), 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
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(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
Depository Agreement and such other agreements as may be necessary or
desirable in connection with the purposes and function of the Trust;
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(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;
(B) the receipt of the Notes;
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(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 Property Trustee shall defend all claims and demands of
all Persons at any time claiming
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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 company" required to be registered under the 1940 Act, (ii) the
Trust will be classified as
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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 [___________],
[____], 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 [__________],
[__________], [__________] and [___________] of each year, commencing on
[__________], [____]. 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 ____% 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 shall have been
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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 [___] 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
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this 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 rely and shall be 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, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(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;
(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 instructions from the Holders of the Trust Securities
which 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 instructions are received, and
(iii) shall be protected in acting in accordance with such 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
[_________] [__], [____] (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.
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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- ___-____. 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, [address], Wilmington, Delaware 198[__], Attention: [_________]; (c)
with respect to the Regular Trustees, to them c/o [__________________], marked
"Attention Regular Trustees of EIX Trust [ ]"; 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.
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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
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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.
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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:_____________________________
[_______________________],
as Regular Trustee
By:________________________________
Name:______________________________
Title:_____________________________
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[_______________________],
as Regular Trustee
By:________________________________
Name:______________________________
Title:_____________________________
[_______________________],
as Regular Trustee
By:________________________________
Name:______________________________
Title:_____________________________
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EXHIBIT A
CERTIFICATE OF TRUST
OF
EIX TRUST [ ]
This CERTIFICATE OF TRUST OF EIX TRUST [ ] (the "Trust"), dated
[________] [___], 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 (the
"Secretary of State") to form a business trust under the Delaware Business Trust
Act (12 Del. C. (S)3801 et seq.).
1. Name. The name of the business trust being formed hereby is EIX Trust
[ ].
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, [address], Wilmington, Delaware 198[__].
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first above written.
[TRUSTEE],
as Trustee
By:________________________________
Name:______________________________
Title:_____________________________
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:________________________________
Name:______________________________
Title:_____________________________
A-1
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EXHIBIT B
BOOK-ENTRY-ONLY CORPORATE EQUITY ISSUES
Letter of Representations
[To be Completed by Issuer and Agent]
EIX Trust [ ], 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 [ ]__% 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").
B-1
<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
B-2
<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:
B-3
<PAGE>
Supervisor; Stock Dividends
Dividend Department
7 Hanover Square; 24/th/ 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; 23/rd/ 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; 23/rd/ 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 [ ] __% 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:
Manager; Announcements
B-4
<PAGE>
Dividend Department
The Depository Trust Company
7 Hanover Square; 22/nd/ 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
B-5
<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:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
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
B-6
<PAGE>
undertakes to perform all of the obligations set forth herein.
B. Schedule B contains statements that DTC believes accurately describes
DTC, the method of effecting book-entry transfers of securities distributed
through DTC, and certain related matters.
EIX Trust [ ], a Delaware business trust
---------------------------------------------
(Issuer)
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
B-7
<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 [ ]
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
EIX Trust [ ], 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 ____% 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 [________] [___], [____], 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 ______, ____.
C-1
<PAGE>
EIX TRUST [ ]
By:________________________________
Name:______________________________
Title: Regular Trustee
C-2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of [________] [___], [____] between Edison
International, a California corporation, and EIX Trust [ ], 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 ____% Cumulative Quarterly Income Preferred Securities, Series [___] (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 [________] [___], [____], 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.
D-1
<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.
D-2
<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 [ ]
[address]
Wilmington, Delaware 198[__]
Facsimile No.: 302- ___-____
Attention: _________________
D-3
<PAGE>
Edison International
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-___-____
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 NEW YORK.
THIS AGREEMENT is executed as of the day and year first above written.
EDISON INTERNATIONAL
By:________________________________
Name:_________________________
Title:________________________
EIX TRUST [ ]
By:________________________________
Name:_________________________
Title: Regular Trustee
D-4
<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 [ ] 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 [ ]
____% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES, SERIES [___]
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
EIX Trust [ ], 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 [ ] ____% Cumulative
Quarterly Income Preferred Securities, Series [___] (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 [________] [___], [____], 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.
E-1
<PAGE>
The Holder is entitled to the benefits of the Guarantee Agreement dated as of
[________] [___], [____] 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 [ ]
By:________________________________
Name:______________________________
Title: Regular Trustee
E-2
<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.
E-3
<PAGE>
Exhibit 5.1
[LETTERHEAD OF KENNETH S. STEWART, ESQ.]
July 2, 1999
Edison International
2244 Walnut Grove Avenue
Rosemead, California 91770
Re: Registration Statement on Form S-3 of Edison International,
EIX Trust I, EIX Trust II and EIX Trust III
----------------------------------------------------------------
Ladies and Gentlemen:
I am an Assistant General Counsel of Edison International, a
California corporation. In connection with the registration statement on Form
S-3 filed on July 2, 1999 (the "Registration Statement") by Edison
International, EIX Trust I, a Delaware business trust, EIX Trust II, a Delaware
business trust, and EIX Trust III, a Delaware business trust (collectively, the
"Registrants") with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), you have
requested my opinion with respect to the matters set forth below.
I have reviewed the prospectus (the "Prospectus") and the prospectus
supplement (the "Initial Prospectus Supplement"), each of which is a part of the
Registration Statement. The Prospectus provides that it will be supplemented in
the future by one or more supplements to the Prospectus, including the Initial
Prospectus Supplement, (each a "Prospectus Supplement"). The Prospectus as
supplemented by various Prospectus Supplements will provide for the registration
of up to $2,500,000,000 aggregate offering price of (i) one or more series of
unsecured senior or subordinated debt securities (the "Debt Securities") which
may be issued by Edison International, (ii) shares of common stock, without par
value, which may be issued by Edison International (the "Common Stock"), (iii)
shares of preferred stock, without par value, which may be issued by Edison
International (the "Preferred Stock"), (iv) preferred securities (the "Preferred
Securities") which may be issued by each Trust pursuant to their respective
Amended and Restated Trust Agreements (each an "Amended Trust Agreement") and
(v) guarantees of the Preferred Securities, which may be issued by Edison
International (the "Preferred Securities Guarantees") described below pursuant
to one or more guarantee agreements (each a "Guarantee Agreement"). The Debt
Securities, the Preferred Securities Guarantees, the Common Stock and the
Preferred Stock are collectively referred to herein as the "Securities." Any
Debt Security may be exchangeable and/or convertible into shares of Common
Stock. The Debt Securities may be issued pursuant to one or more indentures and
one or more supplements thereto (collectively, the "Indentures"), in each case
between Edison International and a trustee (each, a "Trustee").
In my capacity as Assistant General Counsel, I am generally familiar
with the proceedings taken and proposed to be taken by the Registrants in
connection with the
<PAGE>
authorization and issuance of the Securities. For purposes of this opinion, I
have assumed that such proceedings will be timely and properly completed, in
accordance with all requirements of applicable federal, Delaware and California
laws, in the manner presently proposed.
I have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to my satisfaction, of all such documents, corporation records and
instruments of the Registrants as I have deemed necessary or appropriate for
purposes of this opinion. In my examination, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me as originals,
and the conformity to authentic original documents of all documents submitted to
me as copies.
I have been furnished with, and with your consent have exclusively
relied upon, certificates of officers of Edison International with respect to
certain factual matters. In addition, I have obtained and relied upon such
certificates and assurances from public officials as I have deemed necessary.
I am opining herein as to the effect on the subject transaction only
of the federal securities laws of the United States 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.
Subject to the foregoing and the other qualifications set forth
herein, it is my opinion that, as of the date hereof:
1. When (a) the Debt Securities have been duly established in
accordance with the terms of the applicable Indentures (including, without
limitation, the adoption by the Board of Directors of Edison International of
any necessary further resolutions duly authorizing the issuance and delivery of
the Debt Securities), duly authenticated by the Trustee and duly executed and
delivered on behalf of Edison International against payment therefor in
accordance with the terms and provisions of the applicable Indenture and as
contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement(s) and (b) each of the Registration Statement and any
required post-effective amendment thereto have all become effective under the
Securities Act, and assuming that (w) the terms of the Debt Securities as
executed and delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), (x) the Debt Securities as
executed and delivered do not violate any law applicable to Edison International
or result in a default under or breach of any agreement or instrument binding
upon Edison International, (y) the Debt Securities as executed and delivered
comply with all requirements and restrictions, if any, applicable to Edison
International, whether imposed by any court or governmental or regulatory body
having jurisdiction over Edison International, and (z) the Debt Securities are
then issued and sold as contemplated in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), the Debt Securities will
constitute valid and legally binding obligations of Edison International
enforceable against Edison International in accordance with the terms of the
Debt Securities.
<PAGE>
2. With respect to the Preferred Securities Guarantees, when (i) the
trustees of the applicable Trust have taken all necessary action to adopt the
Amended Trust Agreement and to fix and determine the terms of the applicable
Preferred Securities in accordance with the terms of the applicable Amended
Trust Agreement; (ii) the appropriate officers of Edison International have
taken all necessary action to fix and determine the terms of the applicable
Preferred Securities Guarantees in accordance with the resolutions adopted by
the Board of Directors of Edison International relating to the issuance and
delivery of the Preferred Securities; (iii) the terms of the applicable
Preferred Securities and the related Preferred Securities Guarantee and the
issuance and sale thereof have been duly established in conformity with the
applicable Amended Trust Agreement and applicable Guarantee Agreement,
respectively, so as not to violate any applicable law, the applicable
Certificate of Trust, Trust Agreement and Amended Trust Agreement, and the
Articles of Incorporation and Bylaws of Edison International, or result in a
default under or breach of any agreement or instrument binding upon the
applicable Trust or Edison International; (iv) the Guarantee Agreement has been
duly executed and delivered; (v) the applicable Preferred Securities have been
duly issued and delivered by the applicable Trust as contemplated by the
Registration Statement and the Prospectus Supplement(s) relating thereto; (vi)
certificates representing the applicable Preferred Securities have been manually
authenticated by an authorized officer of the applicable Property Trustee (as
defined in the applicable Amended Trust Agreement) for the applicable Preferred
Securities and registered by such Property Trustee and delivered to the
purchasers thereof; (vii) the applicable Trust receives the agreed-upon
consideration therefor and (viii) the Guarantee Agreement shall have been
qualified under the Trust Indenture Act of 1939, as amended, the applicable
Preferred Securities Guarantee will be a valid and binding obligation of Edison
International enforceable in accordance with its terms.
3. Edison International has the authority pursuant to its Articles of
Incorporation to issue up to 800,000,000 shares of Common Stock and 50,000,000
shares of Preferred Stock. Upon adoption by the Board of Directors of Edison
International of any necessary further resolutions and filing of any necessary
certificates of determination as to Preferred Stock, in form and content as
required by applicable law, and upon issuance and delivery of and payment for
such shares in the manner contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and by such resolutions,
such shares of Common Stock (including any Common Stock duly issued upon the
exchange or conversion of Debt Securities that are exchangeable or convertible
into Common Stock). or Preferred Stock will be validly issued, fully paid and
nonassessable.
The opinions set forth in paragraphs 1 through 3 above are subject to
the following exceptions, limitations and qualifications: (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; (ii) the effect of general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance or injunctive relief,
regardless of whether enforcement is considered in a proceeding in equity or at
law, and the discretion of the court before which any proceeding therefor may be
brought; (iii) the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification of, or
<PAGE>
contribution to, a party with respect to a liability where such indemnification
or contribution is contrary to public policy; (iv) the effect of requirements
that a claim with respect to any Preferred Securities Guarantee denominated
other than in United States dollars (or a judgment denominated other than in
United States dollars in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined pursuant to
applicable law; and (v) the effect of governmental authority to limit, delay or
prohibit the making of payments outside the United States or in a foreign
currency, composite currency or current unit. In addition, I express no
opinion concerning the enforceability of any waiver of rights or defenses with
respect to stay, extension or usury laws, or with respect to whether
acceleration of Debt Securities may affect the collectibility of any portion of
the stated principal amount thereof which might be determined to constitute
unearned interest thereon.
I have assumed for purposes of this opinion that (i) the applicable
Indenture constitutes the legally valid, binding and enforceable obligation of
Edison International enforceable against Edison International in accordance with
its terms; (ii) the Trustee for each Indenture is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; (iii) the Trustee is duly qualified to engage in the activities
contemplated by the applicable Indenture; (iv) the applicable Indenture has been
duly authorized, executed and delivered by the Trustee and constitutes a legally
valid, binding and enforceable obligation of the Trustee, enforceable against
the Trustee in accordance with its terms; (v) the Trustee is in compliance,
generally and with respect to acting as Trustee under the applicable Indenture,
with all applicable laws and regulations; and (vi) the Trustee has the requisite
organizational and legal power and authority to perform its obligations under
the applicable Indenture.
I consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Validity of
the Securities and the Preferred Securities Guarantees" in the Prospectus
included therein and under the caption "Validity of Series A QUIPS, Series A
QUIDS and Series A Guarantee" in the Initial Prospectus Supplement included
therein.
Very truly yours,
/S/ Kenneth S. Stewart
-------------------------
Kenneth S. Stewart
Assistant General Counsel
<PAGE>
EXHIBIT 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
July 2, 1999
EIX Trust I
c/o Edison International
2244 Walnut Grove Avenue
(P.O. Box 999)
Rosemead, California 91770
Re: EIX Trust I
-----------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Edison International, a
California corporation (the "Company"), and EIX Trust I, a Delaware business
trust (the "Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of June 30, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on June 30, 1999;
(b) The Trust Agreement of the Trust, dated as of June 30, 1999, among
the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C, and E)(the "Trust Agreement"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus") and prospectus supplement
(the "Prospectus Supplement"), relating to the preferred securities of the Trust
representing
<PAGE>
EIX Trust I
July 2, 1999
Page 2
undivided beneficial interests in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"), as proposed to be filed
by the Company, the Trust and others with the Securities and Exchange Commission
on or about July 2, 1999; and
(e) A Certificate of Good Standing for the Trust, dated July 2, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration
<PAGE>
EIX Trust I
July 2, 1999
Page 3
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of the
Securities and the Preferred Securities Guarantees" in the Prospectus and under
the heading "Validity of Series A Quips, Series A Quids and Series A Guarantee"
in the Prospectus Supplement. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton, & Finger, P.A.
<PAGE>
EXHIBIT 5.3
[Letterhead of Richards, Layton & Finger, P.A.]
July 2, 1999
EIX Trust II
c/o Edison International
2244 Walnut Grove Avenue
(P.O. Box 999)
Rosemead, California 91770
Re: EIX Trust II
------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Edison International, a
California corporation (the "Company"), and EIX Trust II, a Delaware business
trust (the "Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of June 30,
1999 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on June 30, 1999;
(b) The Trust Agreement of the Trust, dated as of June 30, 1999,
among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C, and E)(the "Trust Agreement"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, a
<PAGE>
EIX Trust II
July 2, 1999
Page 2
"Preferred Security" and collectively, the "Preferred Securities"), as proposed
to be filed by the Company, the Trust and others with the Securities and
Exchange Commission on or about July 2, 1999; and
(e) A Certificate of Good Standing for the Trust, dated July 2,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration
<PAGE>
EIX TRUST II
July 2, 1999
Page 3
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of the
Securities and the Preferred Securities Guarantees" in the Prospectus. In
giving the foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder. Except as stated above, without our prior
written consent, this opinion may not be furnished or quoted to, or relied upon
by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton, & Finger, P.A.
<PAGE>
EXHIBIT 5.4
[Letterhead of Richards, Layton & Finger, P.A.]
July 2, 1999
EIX Trust III
c/o Edison International
2244 Walnut Grove Avenue
(P.O. Box 999)
Rosemead, California 91770
Re: EIX Trust III
-------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Edison International, a
California corporation (the "Company"), and EIX Trust III, a Delaware business
trust (the "Trust"), in connection with the matters set forth herein. At your
request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of June 30, 1999
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on June 30, 1999;
(b) The Trust Agreement of the Trust, dated as of June 30, 1999, among
the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C, and E)(the "Trust Agreement"), to be entered into
among the Company, as sponsor, the trustees of the Trust named therein, and the
holders, from time to time, of undivided beneficial interests in the assets of
the Trust, attached as an exhibit to the Registration Statement (as defined
below);
(d) The Registration Statement on Form S-3 (the "Registration
Statement"), including a prospectus (the "Prospectus"), relating to the
preferred securities of the Trust representing undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by
<PAGE>
EIX Trust III
July 2, 1999
Page 2
the Company, the Trust and others with the Securities and Exchange Commission on
or about July 2, 1999; and
(e) A Certificate of Good Standing for the Trust, dated July 2, 1999,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
<PAGE>
EIX Trust III
July 2, 1999
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of the
Securities and the Preferred Securities Guarantees" in the Prospectus. In
giving the foregoing consents, we do not thereby admit that we come within the
category of Persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder. Except as stated above, without our prior
written consent, this opinion may not be furnished or quoted to, or relied upon
by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton, & Finger, P.A.
<PAGE>
Exhibit 8.1
[Letterhead of Latham & Watkins]
July 2, 1999
Edison International
EIX Trust I
2244 Walnut Grove Avenue
P.O. Box 800
Rosemead, California 91770
Re: Offering of Series A QUIPS
--------------------------
Ladies and Gentlemen:
We have acted as counsel to EIX Trust I and Edison International, a
California corporation (the "Company"), in connection with the registration
under the Securities Act of 1933, as amended (the "1933 Act"), and the issuance
of ______________ shares of the Company's __% Cumulative Quarterly Income
Preferred Securities, Series A (QUIPS/SM/) liquidation amount $25.00 per QUIPS
(the "Series A QUIPS"), pursuant to (i) a registration statement on Form S-3,
filed with the Securities and Exchange Commission (the "Commission") as of the
date hereof (the "Registration Statement") and (ii) a Prospectus, including the
documents incorporated by reference therein (the "Base Prospectus"), as
supplemented by the Prospectus Supplement (the "Prospectus Supplement," and
together with the Base Prospectus, the "Prospectus"), each filed as of the date
hereof.
You have requested our opinion concerning the material federal income
tax considerations relating to the purchase, ownership and disposition of Series
A QUIPS in connection with the registration described above. This opinion is
based on various facts and assumptions, including the facts set forth in the
Registration Statement and the Prospectus
<PAGE>
Edison International
EIX Trust I
July 2, 1999
Page 2
concerning the business, properties and governing documents of the Company and
its subsidiaries
In our capacity as such counsel, we have made such legal and factual
examinations and inquiries, including an examination of originals or copies
certified or otherwise identified to our satisfaction of such documents,
corporate records and other instruments, as we have deemed necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the authenticity of all documents submitted to us as originals, the genuineness
of all signatures thereon, the legal capacity of natural persons executing such
documents and the conformity to authentic original documents of all documents
submitted to us as copies.
We are opining herein as to the effect on the subject transaction only
of the federal income tax laws of the United States, and we express no opinion
with respect to the applicability thereto, or the effect thereon, of other
federal laws, the laws of any state or other jurisdiction or as to any matters
of municipal law or the laws of any other local agencies within any state.
Based upon such facts, assumptions and representations, including the
facts set forth in the Registration Statement and the Prospectus, it is our
opinion that the information in the Prospectus Supplement set forth under the
caption "Material United States Federal Income Tax Considerations," to the
extent that it constitutes matters of law, summaries of legal matters, documents
or proceedings, or legal conclusions, is an accurate summary of the material
federal income tax consequences relating to the purchase, ownership and
disposition of Series A QUIPS.
No opinion is expressed as to any matter not discussed herein.
This opinion is rendered to you as of the date of this letter, and we
undertake no obligation to update this opinion subsequent to the date hereof.
This opinion is based on various statutory provisions, regulations promulgated
thereunder and interpretations thereof by the Internal Revenue Service and the
courts having jurisdiction over such matters, all of which are subject to change
either prospectively or retroactively. Also, any variation or difference in the
facts from those set forth in the representations described above, including in
the Registration Statement or the Prospectus, may affect the conclusions stated
herein.
This opinion is rendered to you and is for your benefit and the
benefit of your stockholders in connection with the filing of the Registration
Statement with the Commission. This opinion may not be relied upon by you or
your stockholders for any other purpose, or furnished to, quoted to or relied
upon by any other person, firm or corporation for any purpose, without our prior
written consent. We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of the name of our firm under the
heading "Material United States Federal Income Tax Considerations." In giving
this consent, we do not hereby admit that we are
<PAGE>
Edison International
EIX Trust I
July 2, 1999
Page 3
within the category of persons whose consent is required under Section 7 of the
33 Act or the rules or regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
EXHIBIT 12.1
EDISON INTERNATIONAL
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Thousands of Dollars)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
---------------------------------------------------------------------------
1994 1995 1996 1997 1998
-------------- -------------- --------------- --------------- -------------
<S> <C> <C> <C> <C> <C>
EARNINGS BEFORE INCOME TAXES
AND FIXED CHARGES:
Income before interest expense (1) $ 1,282,776 $ 1,346,636 $ 1,399,650 $ 1,450,957 $ 1,416,332
Add:
Taxes on income (2) 444,635 491,477 505,785 498,729 461,711
Rentals (3) 3,512 4,018 3,269 2,639 2,208
Allocable portion of interest
on long-term contracts for
the purchase of power (4) 1,870 1,848 1,824 1,797 1,767
Spent nuclear fuel interest (7) 68 - - - -
Interest on partnership
indebtedness (5) 30,591 34,681 31,356 34,938 36,019
Amortization of previously capitalized
fixed charges 3,414 2,417 2,232 7,025 7,246
-------------- -------------- --------------- --------------- -------------
Total earnings before income
taxes and fixed charges (A) $ 1,766,866 $ 1,881,077 $ 1,944,116 $ 1,996,085 1,925,283
============== ============== =============== =============== =============
FIXED CHARGES:
Interest and amortization $ 561,265 $ 560,641 $ 635,407 $ 708,446 $ 710,388
Rentals (3) 3,512 4,018 3,269 2,639 2,208
Capitalized interest (6) 48,996 59,885 57,803 14,937 19,219
Allocable portion of interest on
long-term contracts for
the purchase of power (4) 1,870 1,848 1,824 1,797 1,767
Spent nuclear fuel interest (7) 68 - - - -
Interest on partnership
indebtedness (5) 30,591 34,681 31,356 34,938 36,019
Subsidiary preferred and preference stock
dividend requirements - pre-tax basis 67,480 78,017 81,011 73,052 63,888
-------------- -------------- --------------- --------------- -------------
Total fixed charges (B) $ 713,782 $ 739,090 $ 810,670 $ 835,809 833,489
============== ============== =============== =============== =============
RATIO OF EARNINGS TO
FIXED CHARGES (A) / (B): 2.48 2.55 2.40 2.39 2.31
============= ============== =============== =============== =============
</TABLE>
(1) Includes allowance for funds used during construction and accrual of
unbilled revenue.
(2) Includes allocation of federal income and state franchise taxes to other
income.
(3) Rentals include the interest factor relating to certain significant rentals
plus one-third of all remaining annual rentals.
(4) Allocable portion of interest included in annual minimum debt service
requirement of supplier.
(5) Includes the allocable portion of interest on project indebtedness of fifty-
percent partnership investments by other wholly-owned subsidiaries of Edison
International.
(6) Includes the fixed charges associated with Nuclear Fuel and capitalized
interest of fifty-percent owned partnerships.
(7) Represents interest on spent nuclear fuel disposal obligation.
<PAGE>
EXHIBIT 23.3
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 4, 1999
included and incorporated by reference in Edison International's Form 10-K for
the year ended December 31, 1998 and to all references to our Firm included in
the prospectus, which is part of this registration statement.
/s/ Arthur Andersen LLP
Los Angeles, California
July 1, 1999
<PAGE>
EXHIBIT 24.1
EDISON INTERNATIONAL
POWER OF ATTORNEY
The undersigned, EDISON INTERNATIONAL, a California corporation, and
certain of its officers and/or directors do each hereby constitute and appoint
BRYANT C. DANNER, ALAN J. FOHRER, THEODORE F. CRAVER, JR., BEVERLY P. RYDER,
MARY C. SIMPSON, GEORGE T. TABATA, KENNETH S. STEWART, PAIGE W. R. WHITE,
TIMOTHY W. ROGERS, VICTORIA W. SCHWARTZ, BONITA J. SMITH, EILEEN B. GUERRERO,
POLLY L. GAULT, AND BEVERLY K. MARSHALL, or any of them, to act severally as
attorney-in-fact, for and in their respective names, places, and steads, to
execute, sign, and file or cause to be filed with the Securities and Exchange
Commission or any other governmental or regulatory authority one or more
registration statements, and any and all exhibits, supplements and/or amendments
thereto, and any other necessary documents, for the purpose of registering under
the Securities Act of 1933 up to $2.5 billion of bonds, notes, debentures,
preferred securities, or other debt securities, or preferred or common stock, or
other equity securities, to be issued by Edison International, and qualifying
one or more indentures in connection with such securities under the Trust
Indenture Act of 1939 or any other applicable laws, and for the further purpose
of taking any other actions necessary to comply with the laws, rules or
regulations of any governmental or regulatory entity relating to such
securities, granting unto said attorneys-in-fact, and each of them full power
and authority to do and perform every act and thing whatsoever necessary or
appropriate as fully and to all
<PAGE>
intents and purposes as the undersigned or any of them might or could do if
personally present, hereby ratifying and approving the acts of each of said
attorneys-in-fact.
Executed at Rosemead, California, as of this 27th day of May, 1999.
EDISON INTERNATIONAL
By: /s/ John E. Bryson
------------------------------
JOHN E. BRYSON
Chairman of the Board
and Chief Executive Officer
Attest:
/s/ Beverly P. Ryder
- ----------------------------
BEVERLY P. RYDER
Secretary
Principal Executive Officer:
/s/ John E. Bryson Chairman of the Board, Chief
- ----------------------------
John E. Bryson Executive Officer and Director
Principal Financial Officer:
/s/ Alan J. Fohrer Executive Vice President
- ----------------------------
Alan J. Fohrer and Chief Financial Officer
Controller and Principal Accounting Officer:
/s/ Thomas M. Noonan Vice President and Controller
- ------------------------
Thomas M. Noonan
2
<PAGE>
Directors:
<TABLE>
<S> <C> <C> <C>
/s/ Winston H. Chen Director /s/ Ronald L. Olson Director
- --------------------------- ---------------------------
Winston H. Chen Ronald L. Olson
/s/ Warren Christopher Director /s/ James M. Rosser Director
- --------------------------- ---------------------------
Warren Christopher James M. Rosser
/s/ Stephen E. Frank Director /s/ Robert H. Smith Director
- --------------------------- ---------------------------
Stephen E. Frank Robert H. Smith
/s/ Joan C. Hanley Director /s/ Thomas C. Sutton Director
- --------------------------- ---------------------------
Joan C. Hanley Thomas C. Sutton
/s/ Carl F. Huntsinger Director /s/ Daniel M. Tellep Director
- --------------------------- ---------------------------
Carl F. Huntsinger Daniel M. Tellep
/s/ Charles D. Miller Director /s/ Edward Zapanta Director
- --------------------------- ---------------------------
Charles D. Miller Edward Zapanta
/s/ Luis G. Nogales Director
- ---------------------------
Luis G. Nogales
</TABLE>
3
<PAGE>
EXHIBIT 24.2
CERTIFICATION
I, BONITA J. SMITH, the undersigned, Assistant Secretary of Edison
International, a California corporation, DO HEREBY CERTIFY that the attached
Resolution of Edison International is a true and complete copy of the resolution
duly adopted by the Board of Directors of Edison International as of May 20,
1999, authorizing the execution and delivery of the Power of Attorney attached
hereto, which resolution has not been revoked, modified, amended or rescinded
and is still in full force and effect.
WITNESS my hand and seal of Edison International as of this 1st day of
July, 1999.
By: /s/ Bonita J. Smith
---------------------------------------
Name: Bonita J. Smith
Title: Assistant Secretary
EDISON INTERNATIONAL
1
<PAGE>
RESOLUTION OF THE BOARD OF DIRECTORS
OF EDISON INTERNATIONAL
Adopted: May 20, 1999
RE: ISSUANCE AND SALE OF SECURITIES
WHEREAS, this Board of Directors has previously authorized various
financing activities, including but not limited to the issuance and sale of
securities of this corporation, for the purpose of providing funding to Edison
Mission Energy, a wholly-owned indirect subsidiary of this corporation, to
facilitate its acquisition of generating plants and other assets and
investments; and it is appropriate to authorize the filing of registration
statements and taking of other actions for this corporation's financing
activities;
NOW, THEREFORE, BE IT RESOLVED that each of the officers of this
corporation is authorized to, or to cause others to, prepare, execute and file
with the Securities and Exchange Commission or other governmental agencies one
or more registration statements, applications, reports, notifications or other
documents under the Securities Act of 1933, the Securities Exchange Act of 1934,
the Trust Indenture Act of 1939, or other applicable laws and regulations, and
any necessary or appropriate exhibits, amendments or supplements thereto, with
respect to the issuance, offering and sale or exchange of up to $2.5 billion of
securities of this corporation (the "Securities").
BE IT FURTHER RESOLVED, that each of the officers of this corporation is
hereby authorized to execute and deliver on behalf of this corporation and in
its name a power of attorney appointing Bryant C. Danner, Alan J. Fohrer,
Theodore F. Craver, Jr.,
2
<PAGE>
Beverly P. Ryder, Mary C. Simpson, George T. Tabata, Kenneth S. Stewart, Paige
W. R. White, Timothy W. Rogers, Victoria W. Schwartz, Bonita J. Smith, Eileen B.
Guerrero, Polly L. Gault, and Beverly K. Marshall, or any of them, to act
severally as attorney-in-fact for this corporation to effect the filings
authorized in this resolution.
BE IT FURTHER RESOLVED, that each of the officers of this corporation is
authorized to determine in his or her sole discretion whether to list any or all
of the Securities on a securities exchange or exchanges and to take any
necessary or appropriate actions to list, and to maintain the listing of, any or
all of the Securities on a securities exchange or exchanges at one time or from
time to time and on behalf of this corporation to sign any listing applications
(including any amendments and supplements thereto) or other documents or
agreements for such purpose.
BE IT FURTHER RESOLVED, that each of the officers of this corporation is
authorized to, or to cause others to, prepare, execute, and file any documents
and take any actions that may be required to comply with the securities or blue
sky or other laws or regulations of the various states and jurisdictions of the
United States or any other nation or political entity in connection with the
issuance, offering, and sale or exchange of any or all of the Securities; and
this Board of Directors adopts the form of any resolutions required by any such
authority to be filed with any applications, consents to service, or other
documents.
BE IT FURTHER RESOLVED that each of the officers of this corporation is
authorized to perform and to do such acts and things and to execute and deliver
such other agreements, undertakings, documents, instruments, or certificates as
such officer may deem necessary, desirable, or appropriate to carry out the
intent of this resolution.
3
<PAGE>
/s/ John E. Bryson
- --------------------------------------------
Chairman of the Board
/s/ Bryant C. Danner
- --------------------------------------------
Executive Vice President and General Counsel
4
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as Trustee
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) ______
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Judith Bartolini, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
312-461-2527 phone 312-461-3525 facsimile
(Name, address and telephone number for agent for service)
EDISON INTERNATIONAL
(Obligor)
California 95-4137452
(State of Incorporation) (I.R.S. Employer Identification No.)
2244 Walnut Grove Avenue
Rosemead California 91770
(Address of principal executive offices)
Unsecured Senior Debt Securities
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject .
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. through 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee as now in effect
which includes the authority of the trustee to commence business and to
exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in effect
and includes the authority of the Trustee to commence business and to
exercise corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric Company, File No.
2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Commercial Federal Corporation, File
No. 333-20711, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 30th day of June, 1999.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. Bartolini
-------------------------
J. Bartolini
Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. Bartolini
-------------------------
J. Bartolini
Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of December 31, 1998, as published in accordance with
a call made by the State Banking Authority and by the Federal Reserve Bank of
the Seventh Reserve District.
[LOGO] HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on December 31, 1998, a state banking institution organized and
operating under the banking laws of this State and a member of the Federal
Reserve System. Published in accordance with a call made by the Commissioner of
Banks and Trust Companies of the State of Illinois and by the Federal Reserve
Bank of this District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Non-interest bearing balances and currency and coin..................... $ 1,435,233
Interest bearing balances............................................... $ 98,929
Securities:....................................................................
a. Held-to-maturity securities $ 0
b. Available-for-sale securities $ 5,295,498
Federal funds sold and securities purchased under agreements to resell $ 151,575
Loans and lease financing receivables:
Loans and leases, net of unearned income................................ $ 9,320,939
LESS: Allowance for loan and lease losses.............................. $ 108,280
-----------
Loans and leases, net of unearned income, allowance, and reserve
(item 4.a minus 4.b).................................................... $ 9,212,659
Assets held in trading accounts................................................ $ 252,881
Premises and fixed assets (including capitalized leases)....................... $ 271,540
Other real estate owned........................................................ $ 366
Investments in unconsolidated subsidiaries and associated companies............ $ 57
Customer's liability to this bank on acceptances outstanding................... $ 30,829
Intangible assets.............................................................. $ 257,627
Other assets................................................................... $ 1,093,599
-----------
TOTAL ASSETS $18,100,793
===========
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
Deposits:
<S> <C>
In domestic offices.......................................................... $10,270,499
Non-interest bearing.................................................... $ 3,410,568
Interest bearing........................................................ $ 6,859,931
In foreign offices, Edge and Agreement subsidiaries, and IBF's............... $ 935,609
Non-interest bearing.................................................... $ 69,215
Interest bearing........................................................ $ 866,394
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBF's:
Federal funds purchased & securities sold under agreements to repurchase....... $ 3,642,049
Trading Liabilities
Other borrowed money:.......................................................... 131,909
a. With remaining maturity of one year or less $ 1,107,125
b. With remaining maturity of more than one year $ 0
Bank's liability on acceptances executed and outstanding $ 30,829
Subordinated notes and debentures.............................................. $ 225,000
Other liabilities.............................................................. $ 424,376
-----------
TOTAL LIABILITIES $16,767,396
===========
EQUITY CAPITAL
Common stock................................................................... $ 100,000
Surplus........................................................................ $ 608,116
a. Undivided profits and capital reserves..................................... $ 593,973
b. Net unrealized holding gains (losses) on available-for-sale securities $ 31,308
-----------
TOTAL EQUITY CAPITAL $ 1,333,397
===========
Total liabilities, limited-life preferred stock, and equity capital............ $18,100,793
===========
</TABLE>
I, Pamela Piarowski, Vice President of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
PAMELA PIAROWSKI
1/27/99
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
EDWARD W. LYMAN,
ALAN G. McNALLY,
RICHARD E. TERRY
Directors.
4
<PAGE>
EXHIBIT 25.2
________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
____________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
____________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________
<TABLE>
<CAPTION>
<S> <C> <C>
Edison International California 95-4137452
(Exact name of Obligor as (State or other jurisdiction of (IRS employer identification
specified in its charter) incorporation or organization) number (if applicable)
</TABLE>
2244 Walnut Grove Avenue
(P.O. Box 800)
Rosemead, California 91770
(626) 302-6601
(Address, including postal code, and telephone number, including area
code, of principal executive offices)
____________________________
Subordinated Debt Securities
(Title of the indenture securities)
___________________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, New York
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York and State of New York, on the 30th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Alfia Monstra
------------------------
Alfia Monastra
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin......................................... $ 15,364
Interest-bearing balances................................. 3,811
Securities:........................................
Held to maturity securities................................. 1,084
Available for sale securities............................... 49,894
Federal funds sold and securities purchased under
agreements to resell...................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income.................. $131,839
Less: Allowance for loan and lease losses................. 2,642
Less: Allocated transfer risk reserve..................... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve.................................... 129,197
Trading Assets.............................................. 45,483
Premises and fixed assets (including capitalized
leases)................................................... 3,124
Other real estate owned..................................... 242
Investments in unconsolidated subsidiaries and
associated companies...................................... 171
Customers' liability to this bank on acceptances
outstanding............................................... 974
Intangible assets........................................... 2,017
Other assets................................................ 12,477
--------
TOTAL ASSETS................................................ $291,476
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices....................................... $102,273
Noninterest-bearing ...................................... $ 39,135
Interest-bearing.......................................... 63,138
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.................................... 74,586
Noninterest-bearing ...................................... $ 4,221
Interest-bearing.......................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase......................................... 41,039
Demand notes issued to the U.S. Treasury.................... 1,000
Trading liabilities......................................... 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less............. 4,353
With a remaining maturity of more than one year
through three years..................................... 14
With a remaining maturity of more than three years........ 92
Bank's liability on acceptances executed and outstanding.... 974
Subordinated notes and debentures........................... 5,427
Other liabilities........................................... 9,684
TOTAL LIABILITIES........................................... 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............... 0
Common stock................................................ 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves...................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ........................... (179)
Accumulated net gains (losses) on cash flow hedges.......... 0
Cumulative foreign currency translation adjustments......... 17
TOTAL EQUITY CAPITAL........................................ 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL........................ $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
______________________________________________
<TABLE>
<S> <C> <C>
EIX Trust I Delaware 95-7077769
(Exact name of Obligor as specified in its (State or other jurisdiction of incorporation or (IRS employer identification
charter) organization) number (if applicable)
2244 Walnut Grove Avenue
(P.O. Box 800)
Rosemead, California 91770
(626) 302-6601
(Address, including postal code, and telephone number, including area code, of principal executive offices)
</TABLE>
____________________________________________
Preferred Securities
(Title of the indenture securities)
________________________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, New York
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York and State of New York, on the 30th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Alfia Monastra
-------------------------------
Alfia Monastra
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 15,364
Interest-bearing balances........................ 3,811
Securities:........................................
Held to maturity securities........................ 1,084
Available for sale securities...................... 49,894
Federal funds sold and securities purchased under
agreements to resell............................. 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,839
Less: Allowance for loan and lease losses 2,642
Less: Allocated transfer risk reserve............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 129,197
Trading Assets..................................... 45,483
Premises and fixed assets (including capitalized
leases).......................................... 3,124
Other real estate owned............................ 242
Investments in unconsolidated subsidiaries and
associated companies............................. 171
Customers' liability to this bank on acceptances
outstanding...................................... 974
Intangible assets.................................. 2,017
Other assets....................................... 12,477
--------
TOTAL ASSETS....................................... $291,476
========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices....................................................... $102,273
Noninterest-bearing....................................................... $ 39,135
Interest-bearing.......................................................... 63,138
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.................................................... 74,586
Noninterest-bearing....................................................... $ 4,221
Interest-bearing.......................................................... 70,365
Federal funds purchased and securities sold under
agreements to repurchase................................................... 41,039
Demand notes issued to the U.S. Treasury.................................... 1,000
Trading liabilities......................................................... 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less............................. 4,353
With a remaining maturity of more than one year .
through three years.................................................. 14
With a remaining maturity of more than three
years............................................................... 92
Bank's liability on acceptances executed and
outstanding................................................................ 974
Subordinated notes and debentures........................................... 5,427
Other liabilities........................................................... 9,684
TOTAL LIABILITIES........................................................... 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................... 0
Common stock................................................................ 1,211
Surplus (exclude all surplus related to preferred stock)................... 11,016
Undivided profits and capital reserves...................................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ........................................... (179)
Accumulated net gains (losses) on cash flow hedges.......................... 0
Cumulative foreign currency translation adjustments......................... 17
TOTAL EQUITY CAPITAL........................................................ 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL........................................ $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
Exhibit 25.4
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_______________________________________________________
<TABLE>
<CAPTION>
<S> <C> <C>
EIX Trust II Delaware 95-7077770
(Exact name of Obligor as (State or other jurisdiction of (IRS employer identification
specified in its charter) incorporation or organization) number (if applicable)
</TABLE>
2244 Walnut Grove Avenue
(P.O. Box 800)
Rosemead, California 91770
(626) 302-6601
(Address, including postal code, and telephone number, including
area code, of principal executive offices)
_______________________________________________________
Preferred Securities
(Title of the indenture securities)
________________________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, New York
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York and State of New York, on the 30th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Alfia Monastra
--------------------------------
Alfia Monastra
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 15,364
Interest-bearing balances........................ 3,811
Securities:........................................
Held to maturity securities........................ 1,084
Available for sale securities...................... 49,894
Federal funds sold and securities purchased under
agreements to resell............................. 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income......... $131,839
Less: Allowance for loan and lease losses........ 2,642
Less: Allocated transfer risk reserve............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 129,197
Trading Assets..................................... 45,483
Premises and fixed assets (including capitalized
leases).......................................... 3,124
Other real estate owned............................ 242
Investments in unconsolidated subsidiaries and
associated companies............................. 171
Customers' liability to this bank on acceptances
outstanding...................................... 974
Intangible assets.................................. 2,017
Other assets....................................... 12,477
--------
TOTAL ASSETS....................................... $291,476
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices........................................... $ 102,273
Noninterest-bearing........................................... $ 39,135
Interest-bearing.............................................. 63,138
In foreign offices, Edge and Agreement,
subsidiaries and IBF's........................................ 74,586
Noninterest-bearing .......................................... $ 4,221
Interest-bearing.............................................. 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase............................................. 41,039
Demand notes issued to the U.S. Treasury........................ 1,000
Trading liabilities............................................. 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less................. 4,353
With a remaining maturity of more than one year .
through three years....................................... 14
With a remaining maturity of more than three years............ 92
Bank's liability on acceptances executed and
outstanding 974
Subordinated notes and debentures............................... 5,427
Other liabilities............................................... 9,684
TOTAL LIABILITIES............................................... 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock.................................................... 1,211
Surplus (exclude all surplus related to preferred stock)....... 11,016
Undivided profits and capital reserves.......................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ............................... (179)
Accumulated net gains (losses) on cash flow hedges.............. 0
Cumulative foreign currency translation adjustments............. 17
TOTAL EQUITY CAPITAL............................................ 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL............................ $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25.5
_____________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
____________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
____________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________
<TABLE>
<CAPTION>
<S> <C> <C>
EIX Trust III Delaware 95-7077771
(Exact name of Obligor as (State or other jurisdiction of (IRS employer identification
specified in its charter) incorporation or organization) number (if applicable)
</TABLE>
2244 Walnut Grove Avenue
(P.O. Box 800)
Rosemead, California 91770
(626) 302-6601
(Address, including postal code, and telephone number, including area code, of
principal executive offices)
____________________________
Preferred Securities
(Title of the indenture securities)
_________________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, New York
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York and State of New York, on the 30th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Alfia Monastra
------------------------
Alfia Monastra
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin......................................... $ 15,364
Interest-bearing balances................................. 3,811
Securities:........................................
Held to maturity securities................................. 1,084
Available for sale securities............................... 49,894
Federal funds sold and securities purchased under
agreements to resell...................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income.................. $131,839
Less: Allowance for loan and lease losses................. 2,642
Less: Allocated transfer risk reserve..................... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve.................................... 129,197
Trading Assets.............................................. 45,483
Premises and fixed assets (including capitalized
leases)................................................... 3,124
Other real estate owned..................................... 242
Investments in unconsolidated subsidiaries and
associated companies...................................... 171
Customers' liability to this bank on acceptances
outstanding............................................... 974
Intangible assets........................................... 2,017
Other assets................................................ 12,477
--------
TOTAL ASSETS................................................ $291,476
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices....................................... $102,273
Noninterest-bearing ...................................... $ 39,135
Interest-bearing ......................................... 63,138
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.................................... 74,586
Noninterest-bearing ...................................... $ 4,221
Interest-bearing ......................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase......................................... 41,039
Demand notes issued to the U.S. Treasury.................... 1,000
Trading liabilities......................................... 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less............. 4,353
With a remaining maturity of more than one year
through three years..................................... 14
With a remaining maturity of more than three years........ 92
Bank's liability on acceptances executed and outstanding.... 974
Subordinated notes and debentures........................... 5,427
Other liabilities........................................... 9,684
TOTAL LIABILITIES........................................... 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............... 0
Common stock................................................ 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves...................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ........................... (179)
Accumulated net gains (losses) on cash flow hedges.......... 0
Cumulative foreign currency translation adjustments......... 17
TOTAL EQUITY CAPITAL........................................ 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL........................ $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25.6
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
<TABLE>
<CAPTION>
<S> <C> <C>
EIX Trust I Delaware 95-7077769
(Exact name of Obligor as (State or other jurisdiction of (IRS employer identification
specified in its charter) incorporation or organization) number (if applicable)
</TABLE>
2244 Walnut Grove Avenue
(P.O. Box 800)
Rosemead, California 91770
(626) 302-6601
(Address, including postal code, and telephone number, including area code, of
principal executive offices)
___________________
Guarantee of Preferred Securities of EIX Trust I
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, New York
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York and State of New York, on the 30th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Alfia Monastra
------------------
Alfia Monastra
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin............................... $ 15,364
Interest-bearing balances....................... 3,811
Securities:........................................
Held to maturity securities........................ 1,084
Available for sale securities...................... 49,894
Federal funds sold and securities purchased under
agreements to resell............................. 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,839
Less: Allowance for loan and lease losses 2,642
Less: Allocated transfer risk reserve............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 129,197
Trading Assets..................................... 45,483
Premises and fixed assets (including capitalized
leases).......................................... 3,124
Other real estate owned............................ 242
Investments in unconsolidated subsidiaries and
associated companies............................. 171
Customers' liability to this bank on acceptances
outstanding...................................... 974
Intangible assets.................................. 2,017
Other assets....................................... 12,477
--------
TOTAL ASSETS....................................... $291,476
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices...................................... $102,273
Noninterest-bearing...................................... $ 39,135
Interest-bearing......................................... 63,138
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's................................... 74,586
Noninterest-bearing ..................................... $ 4,221
Interest-bearing......................................... 70,365
Federal funds purchased and securities sold under
agreements to repurchase................................... 41,039
Demand notes issued to the U.S. Treasury................... 1,000
Trading liabilities........................................ 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less............ 4,353
With a remaining maturity of more than one year
through three years................................. 14
With a remaining maturity of more than three
years............................................... 92
Bank's liability on acceptances executed and outstanding 974
Subordinated notes and debentures.......................... 5,427
Other liabilities.......................................... 9,684
TOTAL LIABILITIES.......................................... 272,371
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus Common stock. 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves...................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ........................... (179)
Accumulated net gains (losses) on cash flow hedges.......... 0
Cumulative foreign currency translation adjustments......... 17
TOTAL EQUITY CAPITAL........................................ 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL........................ $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-
named bank, do hereby declare that this Report of
Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25.7
_____________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
____________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
<TABLE>
<CAPTION>
<S> <C> <C>
EIX Trust II Delaware 95-7077770
(Exact name of Obligor as (State or other jurisdiction of (IRS employer identification
specified in its charter) incorporation or organization) number (if applicable)
</TABLE>
2244 Walnut Grove Avenue
(P.O. Box 800)
Rosemead, California 91770
(626) 302-6601
(Address, including postal code, and telephone number, including area
code, of principal executive offices)
___________________
Guarantee of Preferred Securities of EIX Trust II
(Title of the indenture securities)
_______________________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, New York
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York and State of New York, on the 30th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Alfia Monastra
------------------
Alfia Monastra
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................ $ 15,364
Interest-bearing balances........................ 3,811
Securities:........................................
Held to maturity securities........................ 1,084
Available for sale securities...................... 49,894
Federal funds sold and securities purchased under
agreements to resell............................. 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,839
Less: Allowance for loan and lease losses 2,642
Less: Allocated transfer risk reserve............ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve........................... 129,197
Trading Assets..................................... 45,483
Premises and fixed assets (including capitalized
leases).......................................... 3,124
Other real estate owned............................ 242
Investments in unconsolidated subsidiaries and
associated companies............................. 171
Customers' liability to this bank on acceptances
outstanding...................................... 974
Intangible assets.................................. 2,017
Other assets....................................... 12,477
--------
TOTAL ASSETS....................................... $291,476
========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices........................................ $ 102,273
Noninterest-bearing........................................ $ 39,135
Interest-bearing........................................... 63,138
----------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's..................................... 74,586
Noninterest-bearing ....................................... $ 4,221
Interest-bearing........................................... 70,365
Federal funds purchased and securities sold under
agree-ments to repurchase................................... 41,039
Demand notes issued to the U.S. Treasury..................... 1,000
Trading liabilities.......................................... 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.............. 4,353
With a remaining maturity of more than one year ...........
through three years................................... 14
With a remaining maturity of more than three
years................................................ 92
Bank's liability on acceptances executed and
outstanding.......................................... 974
Subordinated notes and debentures............................ 5,427
Other liabilities............................................ 9,684
TOTAL LIABILITIES............................................ 272,371
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock................................................ 1,211
Surplus (exclude all surplus related to preferred stock)... 11,016
Undivided profits and capital reserves...................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities ........................... (179)
Accumulated net gains (losses) on cash flow hedges.......... 0
Cumulative foreign currency translation adjustments......... 17
TOTAL EQUITY CAPITAL........................................ 19,105
----------
TOTAL LIABILITIES AND EQUITY CAPITAL........................ $ 291,476
==========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25.8
_______________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
________________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
_____________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
_____________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________
<TABLE>
<CAPTION>
<S> <C> <C>
EIX Trust III Delaware 95-7077771
(Exact name of Obligor as (State or other jurisdiction of (IRS employer identification
specified in its charter) incorporation or organization) number (if applicable)
</TABLE>
2244 Walnut Grove Avenue
(P.O. Box 800)
Rosemead, California 91770
(626) 302-6601
(Address, including postal code, and telephone number, including area code,
of principal executive offices)
_____________________________
Guarantee of Preferred Securities of EIX Trust III
(Title of the indenture securities)
___________________________________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, New York
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If an obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York and State of New York, on the 30th day of June, 1999.
THE CHASE MANHATTAN BANK
By /s/ Alfia Monastra
------------------------
Alfia Monastra
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin......................................... $ 15,364
Interest-bearing balances................................. 3,811
Securities:.................................................
Held to maturity securities................................. 1,084
Available for sale securities............................... 49,894
Federal funds sold and securities purchased under
agreements to resell...................................... 27,638
Loans and lease financing receivables:
Loans and leases, net of unearned income.................. $131,839
Less: Allowance for loan and lease losses................. 2,642
Less: Allocated transfer risk reserve..................... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve.................................... 129,197
Trading Assets.............................................. 45,483
Premises and fixed assets (including capitalized
leases)................................................... 3,124
Other real estate owned..................................... 242
Investments in unconsolidated subsidiaries and
associated companies...................................... 171
Customers' liability to this bank on acceptances
outstanding............................................... 974
Intangible assets........................................... 2,017
Other assets................................................ 12,477
--------
TOTAL ASSETS................................................ $291,476
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<S> <C>
Deposits
In domestic offices....................................... $102,273
Noninterest-bearing....................................... $ 39,135
Interest-bearing.......................................... 63,138
--------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.................................... 74,586
Noninterest-bearing ...................................... $ 4,221
Interest-bearing.......................................... 70,365
Federal funds purchased and securities sold under agree-
ments to repurchase......................................... 41,039
Demand notes issued to the U.S. Treasury.................... 1,000
Trading liabilities......................................... 32,929
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less............. 4,353
With a remaining maturity of more than one year .
through three years..................................... 14
With a remaining maturity of more than three years........ 92
Bank's liability on acceptances executed and outstanding.... 974
Subordinated notes and debentures........................... 5,427
Other liabilities........................................... 9,684
TOTAL LIABILITIES........................................... 272,371
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 11,016
Undivided profits and capital reserves..................... 7,040
Net unrealized holding gains (losses)
on available-for-sale securities .......................... (179)
Accumulated net gains (losses) on cash flow hedges......... 0
Cumulative foreign currency translation adjustments........ 17
TOTAL EQUITY CAPITAL....................................... 19,105
--------
TOTAL LIABILITIES AND EQUITY CAPITAL....................... $291,476
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
