As filed with the Securities and Exchange Commission on August 29, 2000
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
Registration Statement
under
The Securities Act of 1933
Southern California Edison Company California 95-1240335
SCE Trust I Delaware 95-7104035
SCE Trust II Delaware 95-7104036
(Exact name of registrant as (State or other jurisdiction of (I.R.S. Employer
specified in its charter) incorporation or organization) Identification No)
2244 Walnut Grove Avenue
Rosemead, California 91770
626-302-1212
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
Kenneth S. Stewart
Assistant General Counsel
2244 Walnut Grove Avenue (P.O. Box 800)
Rosemead, California 91770
626-302-6601
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
Bradford P. Weirick
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
Approximate Date of Commencement of Proposed Sale to the Public: From time
to time after the effective date of this registration statement as determined by
market conditions.
----------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
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.___
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
---------------------------------------- -------------------- --------------------------- ---------------------
Title of each class of securities Amount to be Proposed maximum aggregate Amount of
to be registered(1) registered(1)(2)(3) offering price(3)(4) registration fee(5)
---------------------------------------- -------------------- --------------------------- ---------------------
<S> <C> <C> <C>
Debt Securities
---------------------------------------- -------------------- --------------------------- ---------------------
Preferred Stock
---------------------------------------- -------------------- --------------------------- ---------------------
Preferred Securities of SCE Trust I
and SCE Trust II (6)
---------------------------------------- -------------------- --------------------------- ---------------------
Guarantees of Preferred Securities
of SCE Trust I and SCE Trust II by
Southern California Edison Company (6)
---------------------------------------- -------------------- --------------------------- ---------------------
Total $1,500,000,000 $1,500,000,000 $289,080
======================================== ==================== =========================== =====================
</TABLE>
(1) An indeterminate principal amount or number of debt securities, preferred
stock and guarantees of Southern California Edison Company and of preferred
securities of SCE Trust I and SCE Trust II as may from time to time be
issued at indeterminate prices, with an aggregate offering price not to
exceed $1,500,000,000. Debt securities may be issued and sold to SCE Trust
I and SCE Trust II, in which event the debt securities may later be
distributed to the holders of preferred securities.
(2) In United States dollars or the equivalent thereof in any other currency,
composite currency or currency unit as shall result in an aggregate initial
offering price for all securities of $1,500,000,000.
(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, and the issue price of any preferred stock and
preferred securities, together with related guarantees.
(4) Estimated solely for the purpose of calculating the registration fee, which
is calculated in accordance with Rule 457(o) 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 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) Calculated in accordance with Rule 457(o) and Rule 429(b) under the
Securities Act of 1933. Pursuant to Rule 429(b), there are carried forward
into this registration statement $125,000,000 of preferred stock from
registration statement no. 33-53288, for which the amount of the filing fee
associated with such securities that was previously paid was $33,000, and
$280,000,000 of debt securities from registration statement no. 333-497,
for which the amount of the filing fee associated with such securities that
was previously paid was $73,920. The amount of the registration fee for
this registration statement has been reduced by such previously paid
amounts.
(6) Includes the rights of holders of the preferred securities under the
guarantees of preferred securities and back-up undertakings, consisting of
obligations by Southern California Edison Company, as set forth in the
trust agreement, the applicable indenture and any supplemental indenture
thereto, in each case as further described in this registration statement.
No separate consideration will be received for any guarantees or back-up
undertakings.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
contained in this registration statement also relates to securities registered
on the prior registration statements referred to in footnote (5) to the
preceding table.
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 the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED ___________, 2000
PROSPECTUS
$1,500,000,000
SOUTHERN CALIFORNIA EDISON COMPANY
Debt Securities, Preferred Stock and Guarantees
SCE TRUST I
SCE TRUST II
Preferred Securities Guaranteed by Southern California Edison Company
The securities may be offered and sold from time to time in one or more
offerings up to an aggregate amount of $1,500,000,000. This prospectus provides
you with a general description of the securities that may be offered.
Each time securities are sold, a supplement to this prospectus that
contains specific information about the offering and the terms of the securities
will be provided. The supplement may also add, update or change information
contained in this prospectus. You should carefully read this prospectus and any
supplement for the specific offering before you invest in any of the securities.
The securities may be sold to or through underwriters, dealers or agents or
directly to other purchasers. A prospectus supplement will set forth the names
of any underwriters, dealers or agents involved in the sale of the securities,
the principal amounts of securities to be purchased by them, and the
compensation they will receive.
Southern California Edison Company may offer and sell debt securities,
preferred stock and guarantees of preferred securities.
SCE Trust I and SCE Trust II may offer and sell preferred securities,
guaranteed by Southern California Edison Company.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
The date of this Prospectus is __________, 2000
<PAGE>
TABLE OF CONTENTS
About This Prospectus........................................................3
Forward-Looking Statements...................................................3
Southern California Edison Company...........................................4
The Trusts...................................................................4
Use of Proceeds..............................................................5
Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends..............................................................5
Description of the Securities................................................5
Description of the Debt Securities...........................................6
Description of the Preferred Stock..........................................19
Description of Preferred Securities.........................................22
Description of Preferred Securities Guarantees..............................28
Description of Expense Agreements...........................................30
Relationship among Preferred Securities, Preferred
Securities Guarantees and Subordinated Debt Securities Held by
Each Trust..................................................................31
Experts.....................................................................31
Validity of the Securities and Preferred Securities Guarantees..............31
Plan of Distribution........................................................32
Where You Can Find More Information.........................................35
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About This Prospectus
This prospectus is provided by Southern California Edison Company, SCE
Trust I and SCE Trust II. In this prospectus, Southern California Edison Company
is sometimes referred to as "Southern California Edison" or by the terms "we,"
"us" and "our." SCE Trust I and SCE Trust II are sometimes referred to together
as the "trusts" or each separately as a "trust."
This prospectus is part of a "shelf" registration statement filed with the
United States Securities and Exchange Commission. By using a shelf registration
statement, we and the trusts may sell up to an aggregate of $1,500,000,000 of
any combination of the securities described in this prospectus from time to time
in one or more offerings. This prospectus only provides you with a general
description of the securities that we and the trusts may offer. Each time we
and/or the trusts 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, delete, update or change information contained in
this prospectus. You should rely on the information in the applicable supplement
if this prospectus and the supplement are inconsistent. Before purchasing any
securities, you should carefully read both this prospectus and any applicable
supplement, together with the additional information described under the heading
"Where You Can Find More Information."
You should rely only on the information contained or incorporated by
reference in this prospectus and in any supplement. Neither we nor the trusts
have 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. Neither we nor the trusts will 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 any
supplement is accurate only 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 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,
relying 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 the headings "Business" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" or similar headings in our Annual Reports on Form 10-K and Quarterly
Reports on Form 10-Q, as well as information in our Current Reports on Form 8-K,
incorporated by reference into this prospectus.
Forward-looking statements are not guarantees of performance. 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 about the
future including, among others, our ability to achieve revenue growth, national,
international, regional and local economic, competitive and regulatory
conditions and developments, technological developments, capital market
conditions, inflation rates, interest rates, energy markets, weather conditions,
regulatory and legal decisions, the pace of deregulation of retail 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 environmental liabilities, and other uncertainties. We and the trusts
caution you not to put undue reliance on any forward-looking statements. For
those statements, we and the trusts claim the protection of the safe harbor for
forward-looking statements contained in the Private Securities Litigation Reform
Act of 1995.
3
<PAGE>
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.
Southern California Edison Company
Southern California Edison is an investor-owned electric utility company,
serving approximately 11 million people within an area of about 50,000 square
miles in central, coastal and southern California. Based in Rosemead,
California, Southern California Edison was incorporated in California in 1909,
and now has assets of more than $18 billion. The mailing address and telephone
number of our principal executive offices are P.O. Box 800, Rosemead, California
91770 and (626) 302-1212.
Edison International, a multinational holding company, owns all of the
outstanding common stock of Southern California Edison, representing over 80
percent of the votes that can be cast by shareholders of Southern California
Edison. Holders of outstanding shares of preferred stock may cast the remainder
of the votes.
The Trusts
Southern California Edison created two Delaware business trusts under two
trust agreements. The trusts are named SCE Trust I and SCE Trust II. Southern
California Edison plans to enter into an amended and restated 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 amended
and restated trust agreement is filed as an exhibit to the registration
statement of which this prospectus is a part.
Each trust will exist solely to:
o issue and sell its preferred securities (representing undivided
beneficial interests in the assets of the trust) to the public;
o issue and sell its common securities (representing undivided
beneficial interests in the assets of the trust) to Southern
California Edison;
o use the proceeds from the sale of its preferred and common securities
to purchase a series of Southern California Edison's subordinated debt
securities;
o distribute the cash payments it receives on the subordinated debt
securities it owns to the holders of the preferred and common
securities; and
o engage in other activities that are necessary or incidental to these
purposes.
Southern California Edison will purchase all of the common securities of
each trust. The common securities will represent an aggregate liquidation amount
equal to at least 3 percent of each trust's total capitalization. The preferred
securities will represent the remaining 97 percent or less 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 Southern California Edison 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 the similar amounts payable on the preferred securities.
The preferred securities will be guaranteed by Southern California Edison
as described later in this prospectus.
Southern California Edison has appointed five trustees to conduct each
trust's business and affairs:
o The Chase Manhattan Bank, as the "property trustee;"
o Chase Manhattan Bank USA, National Association, as the "Delaware
trustee;" and
o Three Southern California Edison officers, as the "regular trustees."
4
<PAGE>
Except under certain limited circumstances, only Southern California Edison
can remove or replace the trustees. Southern California Edison also can increase
or decrease the number of trustees.
Southern California Edison 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.
The trusts will not have separate financial statements. The statements
would not be material to holders of the preferred securities because neither
trust will have any independent operations. Each trust exists solely for the
reasons summarized above.
The principal offices of each trust are located at 2244 Walnut Grove
Avenue, Rosemead, California 91770, and the telephone number of each trust is
(626) 302-1930.
Use of Proceeds
Except as otherwise described in a prospectus supplement, we or the trusts,
as applicable, intend for the net proceeds of the offered securities to be used
by:
o Southern California Edison to redeem, repay or retire outstanding debt
or other securities, to finance construction expenditures, for other
general corporate purposes, or to reduce short-term debt incurred to
finance such activities; and
o the trusts to purchase subordinated debt securities of Southern
California Edison.
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends
The following table sets forth the ratio of Southern California Edison's
earnings to combined fixed charges and preferred stock dividends for each year
in the five-year period ended December 31, 1999:
<TABLE>
<CAPTION>
Year Ended December 31,
1995 1996 1997 1998 1999
---- ---- ---- ---- ----
Ratio of Earnings to Combined Fixed Charges and Preferred
<S> <C> <C> <C> <C> <C>
Stock Dividends . . . . . . . . . . . . . . . . . . . . . . . . . 3.10 3.12 3.11 2.70 2.71
. . . . . . . . . . . . .
Adjusted Ratio of Earnings to Combined Fixed Charges and
Preferred Stock Dividends (1) . . . . . . . . . . . . . . . . . . 3.10 3.12 3.15 3.36 3.28
. . . . . . . . .
(1) The following effects of rate reduction notes are excluded from the adjusted
ratios for 1997, 1998 and 1999:
1997 1998 1999
---- ---- ----
Income before interest expense . . . . . . . . . . . . . . . $8,142,000 $149,486,000 $132,359,000
. . . . . . . . . .
Interest expense . . . . . . . . . . . . . . . . . . . . . . 8,142,000 149,486,000 132,359,000
</TABLE>
SCE Funding LLC, a special purpose entity of which Southern California
Edison is the sole member, issued approximately $2.5 billion of these rate
reduction notes in December 1997. For further details you should refer to
the information described above in "Where You Can Find More Information"
in this prospectus, particularly page 22 of our 1999 Annual Report to
Shareholders.
Description of the Securities
The following is a general description of the terms and provisions of the
securities we and/or the trusts may offer and sell by this prospectus in one or
more distinct offerings. 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, please refer to:
5
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o the indenture between Southern California Edison and The Bank of New
York, successor to Harris Trust and Savings Bank as trustee, dated as
of January 15, 1993, for the issuance of senior debt securities, which
we refer to as the "senior indenture" in this prospectus;
o the indenture between Southern California Edison and The Chase
Manhattan Bank, as trustee, for the issuance of subordinated debt
securities, which we refer to as the "subordinated indenture" in this
prospectus;
o Southern California Edison's restated articles of incorporation,
including the certificates of determination of preferences for
outstanding series of preferred stock;
o the amended and restated trust agreement of each trust, which we refer
to as the "trust agreement" in this prospectus; and
o the guarantee agreement between Southern California Edison and The
Chase Manhattan Bank, as trustee, relating to Southern California
Edison's guarantee of the preferred securities issued by each trust.
We and the trusts have filed or incorporated by reference forms or copies
of these documents as exhibits to the registration statement. In this prospectus
we sometimes refer to the indentures listed above together as the "indentures"
and each separately as an "indenture." We refer to the trustee for each
indenture as the "indenture trustee." The indentures are governed by the Trust
Indenture Act of 1939 and may be supplemented or amended from time to time. The
indentures are substantially similar, but differ in some important respects. The
material differences between the indentures are set forth in the description
below.
Description of the Debt Securities
The following description discusses the general terms and provisions of the
debt securities that we may offer by this prospectus in one or more distinct
offerings. We may issue the debt securities as senior debt securities or
subordinated debt securities. The indebtedness represented by the senior debt
securities will rank equally with all other unsecured and unsubordinated debt of
Southern California Edison. 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 Southern California Edison, to the
extent and in the manner set forth in the applicable prospectus supplement for
the securities. (See "Subordination" below.)
At June 30, 2000, Southern California Edison had approximately $3.82
billion of indebtedness that would rank senior to the senior debt securities and
approximately $6.30 billion that would rank senior to the subordinated debt
securities. Both those amounts of indebtedness include $1.96 billion of first
mortgage bonds and $1.86 billion of rate reduction notes previously issued by or
on behalf of Southern California Edison that would rank senior to the senior
debt securities and the subordinated debt securities. The first mortgage bonds
are issued under and secured by a trust indenture that creates a lien on
substantially all the properties of Southern California Edison for the benefit
of the holders of the first mortgage bonds. The rate reduction notes are secured
by a right to receive certain charges from electricity customers of Southern
California Edison. The debt securities we are offering by this prospectus are
not secured by any assets or property of Southern California Edison.
The indentures give 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 indentures. 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 by 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. Unless we indicate
otherwise, each time we refer to a section number it is to the same numbered
section in
6
<PAGE>
each indenture. 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 the
description of the particular terms of the debt securities in the applicable
prospectus supplement.
General
We may issue an unlimited amount of debt securities under each indenture in
one or more series, up to the aggregate principal amounts that may be authorized
by us from time to time.
The debt securities will be unsecured obligations of Southern California
Edison.
Before issuing each series of debt securities, we will specify the terms of
that series through a board resolution, officers' certificate or supplemental
indenture. We refer you to the applicable prospectus supplement for a
description of the following terms, among others, of each series of debt
securities:
o the title of the debt securities;
o any limit on the aggregate principal amount of the debt securities of
that series;
o the price at which the debt securities will be issued;
o the date or dates on which principal will be payable or how to
determine the dates;
o the rate or rates or method of determining interest; the date or dates
from which interest will accrue; the dates on which interest will be
payable, which we refer to as the "interest payment dates;" any record
dates for the interest payable on the interest payment dates; and any
special provisions for the payment of additional amounts with respect
to the debt securities;
o the place or places where payments on the debt securities will be
made;
o any obligation or option on our part to redeem, purchase or repay debt
securities; any option of the holder to require us to redeem or
repurchase debt securities; and the terms and conditions upon which
the debt securities will be redeemed, purchased or repaid;
o any provision for deferral of interest payments;
o the denominations in which the debt securities will be issued (if
other than denominations of $1,000 and any integral multiple thereof);
o 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;
o whether the debt securities may be issued in the form of bearer
securities or registered securities, or both, and provisions related
thereto;
o if bearer securities are issuable, the terms and conditions upon which
(a) interest payments will be credited to the persons entitled to
them, (b) interests in a temporary global security may be exchanged
for interests in a definitive global security or for definitive debt
securities, and (c) interests in any definitive global security may be
exchanged for definitive debt securities;
o if other than United States dollars, the currency or currencies in
which the debt securities will be denominated and principal and
interest will be payable;
o any index used to determine the amount of payments of principal of and
any premium and interest on the debt securities;
o any deletions, modifications or additions to the covenants or events
of default provided for the debt securities;
o whether the debt securities are subject to discharge and defeasance at
our option; and
o any other terms of the debt securities.
7
<PAGE>
In addition, we will set forth in the prospectus supplement for any
offering of subordinated debt securities the following terms to the extent they
are applicable:
o any right to extend the interest payment periods;
o whether the series of subordinated debt securities will be junior in
right of payment to any other series; and
o any changes in the subordination provisions of the subordinated
indenture with respect to the series.
(Section 301.)
We may also issue debt securities as original issue discount securities to
be offered and sold at a substantial discount below their stated principal
amount. We will describe in a prospectus supplement the federal income tax
consequences and other special considerations applicable to any original issue
discount securities. (Section 101.)
Form of Debt Securities
We may issue the senior debt securities as registered securities, bearer
securities or both. We may issue the subordinated debt securities only as
registered securities, unless we enter into a supplemental indenture that
provides for bearer securities. We also may issue the debt securities of a
series in whole or in part in the form of one or more global securities, as
described below under the heading "Global Securities." Unless we specify
otherwise in a prospectus supplement, registered securities denominated in
United States dollars will be issued only in the denominations of $1,000 and any
integral multiple thereof and bearer securities denominated in United States
dollars will be issued only in denominations of $1,000, $10,000, and $100,000.
All debt securities of any one series will be substantially identical except as
to denomination and as otherwise provided by a board resolution, officer's
certificate or supplemental indenture. For any series of debt securities
denominated in a foreign or composite currency, we will specify the
denominations and any special United States federal income tax and other related
considerations in a prospectus supplement. No service charge will be made for
any transfer or exchange of debt securities, but we may require payment of a sum
sufficient to cover any applicable tax or other governmental charge. (Sections
301 and 302.)
Payment of Debt Securities
Registered Securities. Unless we state otherwise in a prospectus
supplement, we will make payments with respect to debt securities that are in
registered form as follows:
o We will pay interest on each interest payment date to the person in
whose name the debt security is registered at the close of business on
the regular record date for the interest payment. At our option, we
may pay interest by mailing a check to each holder's registered
address or by wire transfer to an account designated by the holder
under an arrangement that is satisfactory to the indenture trustee and
us.
o We will pay principal of and any premium on registered securities at
their stated maturity, upon redemption or when otherwise due, upon
presentation of the debt securities at the corporate trust office of
the respective indenture trustee in Chicago, Illinois, for senior debt
securities, and New York, New York, for subordinated debt securities.
(Sections 307 and 1001.)
Bearer Securities. Unless we state otherwise in a prospectus supplement, we
will make payments in the designated currency with respect to senior debt
securities that are in bearer form as follows:
o We will pay interest on each interest payment date only upon
presentation of the coupon for the interest payment at a paying agency
outside the United States designated by us.
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<PAGE>
o We will pay principal of and any premium on bearer securities at their
stated maturity, upon redemption or when otherwise due, upon
presentation of the debt securities at a paying agency outside the
United States designated by us.
o At the option of a holder of bearer debt securities, we will also pay
any principal, premium or interest by mailing a check or by wire
transfer to an account with a bank located outside the United States.
Unless we state otherwise in a prospectus supplement, we will not make any
payment with respect to a bearer senior debt security within the United States
(including payment at the corporate trust office of the indenture trustee or any
other paying agency in the United States, by transfer to an account in the
United States, or by mail to an address in the United States), except if payment
at all paying agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions. In that case, we
will pay principal of and premium, if any, and interest on bearer senior debt
securities in United States dollars at the corporate trust office of the
indenture trustee in Chicago, Illinois. (Sections 1001 and 1002 of the senior
indenture.)
Paying Agents. In a prospectus supplement, we will name any paying agents
other than the indenture trustee that we have initially appointed for a series
of debt securities. We may terminate the appointment of any of the paying agents
at any time, except that we will maintain at least one paying agent in Chicago,
Illinois for registered senior debt securities and at least one paying agent in
a city outside the United States so long as any bearer senior debt securities
are outstanding. In addition, we will maintain a paying agent in London or
Luxembourg or any city outside the United States, if that is required by a stock
exchange on which a series of senior debt securities is listed. (Section 1002.)
Any money we provide to a paying agent for the payment of principal,
premium or interest that remains unclaimed at the end of two years after the
payment became due and payable will be repaid to us. Thereafter, the holder of
debt securities entitled to such payment must look only to us for payment.
(Section 1003.)
Exchanges and Transfers of Debt Securities
Subject to the provisions of the applicable indenture and prospectus
supplement, you may exchange your debt securities (other than debt securities
represented by a global security, except as set forth below) for other debt
securities of the same series with the same interest rate, maturity and total
principal amount, as described in this section. You may have your debt
securities divided or combined into smaller or larger authorized denominations.
If you hold bearer senior debt securities, you may exchange them (with the
remaining coupons) for registered senior debt securities or other bearer senior
debt securities, but the exchange must be made outside the United States. If you
hold registered securities, you may not exchange them for bearer securities.
(Section 305.)
You may exchange or transfer your registered debt securities, other than
debt securities represented by a global security, at the office of the indenture
trustee or another transfer agent designated by us and named in a prospectus
supplement. We have appointed the indenture trustee to act as the security
registrar for registering debt securities in the names of holders and
transferring debt securities. We may appoint, remove or add additional transfer
agents and change their locations. If we issue bearer debt securities, we will
maintain a transfer agent outside the United States where they may be exchanged.
If you hold bearer senior debt securities, you may transfer them by delivering
the certificate to the new holder. There will be no service charge for transfer
or exchange of your debt securities, but you may be required to pay for any
related taxes and other governmental charges. (Sections 305 and 1002.)
In the event of any redemption, we are not required to:
o issue, register the transfer of or exchange the debt securities during
a period of 15 days before giving any notice of redemption;
o register the transfer of or exchange any registered security selected
for redemption in whole or in part, except the unredeemed portion of
any registered security being redeemed in part;
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o exchange any bearer senior debt security selected for redemption,
except that a bearer senior debt security may be exchanged for a
registered senior debt security of the same series if the debt
securities of the series are issuable as registered securities; or
o register the transfer of or exchange any debt security if the holder
of the debt security has expressed the right, if any, to require us to
repurchase the debt security in whole or in part, except that portion
of the debt security not required to be repurchased, provided that the
debt security shall be immediately surrendered for redemption with
written instructions for payment consistent with the provisions of the
indenture.
(Section 305.)
Redemption of Debt Securities
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 for debt securities redeemable at the option of the
registered holder, we may redeem debt securities upon notice by mail between 30
and 60 days before the redemption date. If we choose to redeem less than all of
the debt securities of any series or tranche of a series, the indenture trustee
will select the debt securities to be redeemed. The indenture trustee will
choose a method of selection it deems fair and appropriate unless another method
has been specified in accordance with the indenture. (Sections 1102, 1103 and
1104.)
Debt securities will cease to bear interest on the redemption date. We will
pay the redemption price and any accrued interest once you surrender the debt
security for redemption (along with any remaining coupons in the case of bearer
senior debt securities). If only part of a debt security is redeemed and you
have surrendered the debt security, the indenture trustee will deliver to you a
new debt security of the same series for the remaining portion without charge.
(Sections 1106 and 1107.)
Global Securities
We may issue all or part of the debt securities of a series in the form of
one or more global securities. Each global security will be issued in a total
principal amount equal to the principal amount of all the debt securities
represented by that global security. We may issue global securities in either
registered or bearer form (as to senior debt securities) and in either temporary
or definitive form. The global securities will be deposited with a depositary.
(Sections 303 and 305.)
We will describe the specific terms of the depositary arrangement for any
global securities in the prospectus supplement for the applicable series. We
expect that the following provisions will generally apply to depositary
arrangements.
We will treat the depositary for a global security, or its nominee, as the
sole holder of the global security and all the debt securities represented by
the global security. The depositary will keep a book-entry registration and
transfer system in which it will credit ownership of the underlying debt
securities to participating institutions that have accounts with the depositary.
Those participants may be brokers, dealers, banks and other financial or
securities institutions. A participant may own an interest in a global security
for its own account or for the benefit of persons who have accounts with the
participant. Ownership and transfers of beneficial interests in a global
security will be shown only on the records maintained by the depositary or by
participants or persons that hold through participants.
Except as set forth below, if you own a beneficial interest in a global
security, you will not be entitled to have debt securities represented by the
global security registered in your name, you will not be entitled to receive
physical certificates for the debt securities, and you will not be considered
the owner under the indenture. Accordingly, to exercise the rights of a holder
of debt securities under the indenture, you must rely on the procedures of the
depositary and/or the participant or indirect participant through which you own
your interest.
We will make principal, premium, if any, and interest payments to the
depositary, or its nominee, as the registered owner of a global security. We
expect that the depositary immediately will credit participants'
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accounts with the payments in amounts proportionate to their respective
beneficial interests in the principal amount of the global security as shown on
the records of the depositary. We also expect that those participants will make
payments to persons who own beneficial interests in the global security through
the participants, in accordance with standing instructions and customary
practices, as is now the case with securities held for the accounts of customers
in bearer form or registered in "street name." Payments to owners of beneficial
interests in a temporary global security that represents bearer senior debt
securities will be subject to the restrictions discussed under the heading
"Limitations on Issuance of Bearer Securities" below.
We will issue debt securities in definitive form in exchange for the global
security held by a depositary if:
o the depositary is unwilling or unable to continue as depositary and we
do not appoint a successor within 90 days; or
o we choose not to have any debt securities of a series represented by a
global security.
In either instance, an owner of a beneficial interest in a global security
will be entitled to physical delivery in definitive form of debt securities
equal in principal amount to the owner's beneficial interest in the global
security. See, however, the discussion under the heading "Limitations on
Issuance of Bearer Securities" below for a description of certain restrictions
on the issuance of a bearer senior debt security in definitive form in exchange
for an interest in a global senior debt security.
Events of Default and Remedies for Senior Debt Securities
This section contains descriptions of the events of default and remedies
specified in the senior indenture for the senior debt securities. The
corresponding provisions for the subordinated debt securities, which differ in
some material respects, are described in the next following section under the
heading "Events of Default and Remedies for Subordinated Debt Securities."
Defaults. An "event of default" under the senior indenture occurs with
respect to any series of senior debt securities if:
o we do not pay any installment of interest on senior debt securities of
the series within 30 days of when it is due;
o we do not pay principal or premium on any senior debt securities of
the series when it is due;
o we do not pay any sinking fund installment on senior debt securities
of the series when it is due;
o we remain in breach of any other covenant or agreement in the senior
indenture for 60 days after receiving notice from the indenture
trustee or the holders of 25 percent in principal amount of all the
outstanding senior debt securities;
o we fail to pay any indebtedness of more than $10,000,000 when it is
finally due and do not fully cure the failure within 30 days after
receiving of notice from the indenture trustee or the holders of 25
percent in principal amount of all the outstanding senior debt
securities; or
o we file for bankruptcy or become subject to specified proceedings
involving bankruptcy, insolvency or reorganization.
An event of default with respect to one series of senior debt securities
does not necessarily constitute an event of default with respect to any other
series of senior debt securities. (Section 501 of the senior indenture.) We are
required to file with the indenture trustee an annual officer's certificate
indicating whether we are in default under the senior indenture. (Section 1008
of the senior indenture.)
Acceleration. If an event of default occurs and is continuing with respect
to any series of senior debt securities, either the indenture trustee or the
holders of 25 percent in principal amount of the senior debt securities of the
series (or in the case of defaults described in the last three bulleted clauses
under "Defaults" above, the holders of 25 percent in principal amount of all the
senior debt securities) may declare the principal amount of the senior debt
securities of that series (or of all the senior debt securities, as the case may
be) to be
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immediately due and payable. After a declaration of acceleration has
been made and before the indenture trustee has obtained a judgment or decree for
payment of the money due, the holders of a majority in principal amount of
senior debt securities of that series or of all of the senior debt securities,
as the case may be, may rescind and annul the acceleration if we have paid any
past due payments of principal, premium or interest and met certain other
conditions. In certain cases, the holders of a majority in principal amount of
the senior debt securities of any series or of all the senior debt securities,
as the case may be, may waive any past default or event of default. (Sections
502 and 513 of the senior indenture.)
Actions by Indenture Trustee and Holders. The senior indenture contains the
following provisions regarding the actions of the indenture trustee and the
holders of the senior debt securities after an event of default:
o The indenture trustee must give notice of a default to the holders of
senior debt securities of the affected series within 90 days after a
default occurs that is known to the indenture trustee, if the default
is not cured or waived. However, the indenture trustee may withhold
the notice if it determines in good faith that it is in the interests
of the holders to do so, except in the case of a default in the
payment of principal, premium or interest. (Section 602 of the senior
indenture.)
o Subject to its duty to act with the required standard of care during a
default, the indenture trustee is entitled to be indemnified by the
holders of the senior debt securities of a series before exercising
any right or power under the senior indenture with respect to the
series at the request of the holders. (Section 603 of the senior
indenture.)
o No holder of senior debt securities of a series may institute
proceedings to enforce the senior indenture except, among other
things, where the indenture trustee has failed to act for 60 days
after it has been given notice of a default and holders of 25 percent
in principal amount of the senior debt securities of the series (or in
the case of defaults described in the last three bulleted clauses
under "Defaults" above, the holders of 25 percent in principal amount
of all the senior debt securities) have requested the indenture
trustee to enforce the senior indenture and offered reasonable
indemnity to the indenture trustee. (Section 507 of the senior
indenture.)
o Each holder of senior debt securities has an absolute and
unconditional right to receive payment of principal, premium and
interest when due and to bring a suit a to enforce that right.
(Section 508 of the senior indenture.)
o The holders of a majority in principal amount of the senior debt
securities of a series or of all the senior debt securities, as the
case may be, may direct the time, method and place of conducting any
proceedings for any remedy available to the indenture trustee or
exercising any trust or power conferred on it with respect to the
senior debt securities of the series, as long as the direction does
not conflict with any law or the senior indenture or expose the
indenture trustee to personal liability. The indenture trustee may
take any other action it deems proper that is not inconsistent with
the direction of the holders. (Section 512 of the senior indenture.)
Events of Default and Remedies for Subordinated Debt Securities
This section contains descriptions of the events of default and remedies
specified in the subordinated indenture for the subordinated debt securities.
The corresponding provisions for the senior debt securities, which differ in
some material respects, are described in the preceding section under the heading
"Events of Default and Remedies for Senior Debt Securities."
Defaults. An "event of default" under the subordinated indenture occurs
with respect to any series of subordinated debt securities if:
o we do not pay any installment of interest on subordinated debt
securities of the series within 30 days of when it is due (following
any deferral allowed under the terms of the subordinated debt
securities and elected by us);
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o we do not pay principal or premium on any subordinated debt securities
of the series when it is due;
o we do not pay any sinking fund installment on subordinated debt
securities of the series within 60 days of when it is due;
o we remain in breach of any other covenant or agreement in the
subordinated indenture for 90 days after receiving notice from the
indenture trustee or the holders of 25 percent in principal amount of
the outstanding subordinated debt securities of the series;
o we file for bankruptcy or become subject to specified proceedings
involving bankruptcy, insolvency or reorganization; or
o any other event of default specified in the prospectus supplement
occurs.
An event of default with respect to one series of subordinated debt
securities does not necessarily constitute an event of default with respect to
any other series of subordinated debt securities. (Section 501 of the
subordinated indenture.) We are required to file with the indenture trustee an
annual officer's certificate indicating whether we are in default under the
subordinated indenture. (Section 1005 of the subordinated indenture.)
Acceleration. If an event of default occurs and is continuing with respect
to any series of subordinated debt securities, either the indenture trustee or
the holders of 25 percent in principal amount of the subordinated debt
securities of the series (or, if any subordinated debt securities of that series
are original issue discount securities, such portion of the principal amount as
may be specified in such securities) may declare the principal amount of the
subordinated debt securities of that series to be immediately due and payable.
After a declaration of acceleration has been made and before the indenture
trustee has obtained a judgment or decree for payment of the money due, the
holders of a majority in principal amount of subordinated debt securities of
that series may rescind and annul the acceleration if we have paid any past due
payments of principal, premium or interest and met certain other conditions. In
certain cases, the holders of a majority in principal amount of the subordinated
debt securities of all affected series, voting as one class, may waive any past
default or event of default. (Sections 502 and 513 of the subordinated
indenture.)
Actions by Indenture Trustee and Holders. The subordinated indenture
contains the following provisions regarding the actions of the indenture trustee
and the holders of the subordinated debt securities after an event of default:
o The indenture trustee must give notice of a default to the holders of
subordinated debt securities of the affected series as provided by the
Trust Indenture Act. (Section 602 of the subordinated indenture.)
o Subject to its duty to act with the required standard of care during a
default, the indenture trustee is entitled to be indemnified by the
holders of the subordinated debt securities of a series before
exercising any right or power under the subordinated indenture with
respect to the series at the request of the holders. (Section 603 of
the subordinated indenture.)
o No holder of subordinated debt securities of a series may institute
proceedings to enforce the subordinated indenture except, among other
things, where the indenture trustee has failed to act for 60 days
after it has been given notice of a default and holders of 25 percent
in principal amount of the subordinated debt securities of all
affected series, considered as one class (or in the case of defaults
in the payment of principal, premium or interest, an affected series)
have requested the indenture trustee to enforce the subordinated
indenture and offered reasonable indemnity to the indenture trustee.
(Section 507 of the subordinated indenture.)
o Each holder of subordinated debt securities has an absolute and
unconditional right to receive payment of principal, premium and
interest when due and to bring a suit a to enforce that right.
(Section 508 of the subordinated indenture.)
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o The holders of a majority in principal amount of the subordinated debt
securities of an affected series (or of all the subordinated debt
securities, in the case of a default as to all series) may direct the
time, method and place of conducting any proceedings for any remedy
available to the indenture trustee or exercising any trust or power
conferred on it with respect to the subordinated debt securities of
the series, as long as the direction does not conflict with any law or
the subordinated indenture or involve the indenture trustee in
personal liability. The indenture trustee may take any other action it
deems proper that is not inconsistent with the direction of the
holders. (Section 512 of the subordinated indenture.)
Modification of the Indenture
Without Consent of Holders. Without the consent of any holders of debt
securities, we and the indenture trustees may enter into supplemental indentures
to:
o evidence the succession of another entity to take our place and assume
our covenants;
o add to our covenants for the benefit of the holders of all or any
series of the debt securities, or surrender any right or power
conferred upon us;
o add any additional events of default for all or any series of the debt
securities;
o add to or change certain provisions for issuing, exchanging or
registering bearer securities, as specified in the senior indenture or
the subordinated indenture;
o add to, change or eliminate any provisions of the indenture, but those
modifications will not apply to debt securities of any series that was
created before the modifications;
o establish the form or terms of debt securities of any series as
permitted by the indentures;
o evidence and provide for a successor or additional indenture trustee;
o provide security for the debt securities of any series;
o cure any ambiguity, defect or inconsistency or make any other changes
that do not adversely affect the interests of the holders of debt
securities; or
o evidence any changes in the disqualification and eligibility
requirements applicable to the indenture trustee under the senior
indenture, as permitted by the senior indenture, or effect any change
to qualify the senior indenture under the Trust Indenture Act of 1939.
(Section 901.)
With Consent of Holders. We may enter into supplemental indentures with
the indenture trustees to modify the indentures or the rights of holders of the
debt securities, if we obtain the consent of the holders of at least a majority
in principal amount of the debt securities affected by the modification.
However, without the consent of all affected holders of debt securities, no
supplemental indenture may:
o change the stated maturity of the principal or interest on any debt
security, reduce the principal amount or interest payable, reduce any
premium payable upon redemption, reduce the amount of principal of an
original issue discount security payable upon its acceleration, change
the currency in which any debt security is payable, change any right
of redemption or repurchase, or impair the right to bring suit to
enforce any payment;
o reduce the percentages of holders whose consent is required for any
supplemental indenture or waiver or reduce the requirements for quorum
and voting under the indentures; or
o modify certain provisions in the indentures relating to supplemental
indentures and waivers of covenants and past defaults.
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A supplemental indenture that changes or eliminates any provision of the
indentures expressly included solely for the benefit of holders of debt
securities of one or more particular series will be deemed not to affect the
rights of the holders of debt securities of any other series. (Section 902.)
Consolidation, Merger and Sale of Assets; No Financial Covenants
Subject to the provisions described in the next paragraph, we will preserve
our corporate existence. (Section 1004.)
We have agreed not to consolidate with or merge into any other entity and
not to convey, transfer or lease our properties and assets substantially as an
entirety to any entity, unless:
o the entity formed by the consolidation or merger, or which acquires or
leases our property and assets substantially as an entirety, is
organized and existing under the laws of the United States or any
state or the District of Columbia, and expressly assumes, by a
supplemental indenture in form satisfactory to the indenture trustees,
the due and punctual payment of the principal, premium and interest on
all the debt securities and the performance of all of our covenants
under the indentures;
o 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 happened and be
continuing; and
o we have given the indenture trustees an officers' certificate and
legal opinion that all conditions in the indentures relating to the
transactions have been complied with.
(Section 801.)
The indentures contain 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. There are no provisions of
the indentures that protect holders of the debt securities in the event of a
highly leveraged transaction involving Southern California Edison. However,
management of Southern California Edison believes that required regulatory
approvals of a highly leveraged transaction would be unlikely to be obtained.
Discharge and Defeasance
There are significant differences between the provisions of the senior
indenture and the subordinated indenture for defeasance of debt securities and
discharge of our obligations. The respective provisions are discussed separately
below.
Defeasance of Senior Debt Securities When we issue a series of senior debt
securities, we may specify that we will be discharged from any and all
obligations in respect of those senior debt securities (except as described
below) upon the irrevocable deposit with the indenture trustee of money and/or
government obligations which will provide money in an amount sufficient to pay
principal, premium and interest on the senior debt securities when due in
accordance with the terms of the senior indenture and the senior debt
securities. We must also satisfy conditions that:
o the deposit will not cause the indenture trustee to have a conflicting
interest;
o there is no event of default under the senior indenture within 91 days
after the deposit;
o the deposit will not result in breach or violation of any applicable
laws, the senior indenture or any other agreement by which we are
bound;
o the deposit will not result in a trust that is an investment company
subject to the Investment Company Act of 1940, or such trust will be
qualified or exempt from the Investment Company Act of 1940; and
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o we have delivered to the indenture trustee an officer's certificate
and an opinion of counsel each stating that all conditions in the
senior indenture to the defeasance and discharge have been complied
with.
The discharge of our obligations does not include certain obligations to
register the transfer or exchange of senior debt securities, replace stolen,
lost or mutilated senior debt securities, maintain paying agencies and hold
monies for payment in trust and, if so specified as to the senior debt
securities of a series, to pay the principal, premium and interest on those
senior debt securities.
We may specify as to the senior debt securities of a series that the
deposit of money described above will be made only if it will not cause the
senior debt securities listed on any nationally recognized securities exchange
to be de-listed. We may also specify as to a series of senior debt securities
that the deposit will be conditioned on our giving to the indenture trustee an
opinion of counsel (who may be our counsel) to the effect that, based upon
applicable United States federal income tax laws or a ruling published by the
United States Internal Revenue Service, the deposit and discharge will not be a
taxable event for the holders of the senior debt securities. (Section 1301 of
the senior indenture.)
Defeasance of Subordinated Debt Securities. The subordinated indenture
provides, unless the terms of the particular series of subordinated debt
securities provide otherwise, that upon satisfying several conditions we may
cause ourselves to be: o discharged from our obligations, with some exceptions,
as to any series of subordinated debt securities, which we refer to as
"defeasance;" and o released from our obligations under specified covenants as
to any series of subordinated debt securities, which we refer to as "covenant
defeasance."
The conditions that we must satisfy for either a defeasance or a covenant
defeasance of a series of subordinated debt securities include:
o 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 principal, premium and interest on the subordinated debt
securities on the maturity dates of the payments or upon redemption;
o there is no event of default under the subordinated indenture at the
time of such deposit or, as to defaults related to bankruptcy or
similar proceedings, within 90 days after the deposit;
o notice of redemption of the subordinated debt securities has been
given or provided for, if the subordinated debt securities are to be
redeemed before their stated maturity (other than from mandatory
sinking fund payments or analogous payments); and
o we have delivered to the indenture trustee an officer's certificate
and an opinion of counsel each stating that all conditions to the
defeasance or covenant defeasance have been complied with.
The discharge of our obligations through a defeasance or covenant
defeasance does not discharge the rights of the holders of the defeased
subordinated debt securities to receive payments of principal, premium and
interest from the trust funds when due, or our obligations to register the
transfer or exchange of subordinated debt securities, replace stolen, lost or
mutilated subordinated debt securities, maintain paying agencies and hold monies
for payment in trust.
The subordinated indenture permits defeasance as to any series of
subordinated debt securities even if a prior covenant defeasance has occurred as
to the subordinated debt securities of that series. Following a defeasance,
payment of the subordinated debt securities defeased may not be accelerated
because of an event of default. Following a covenant defeasance, payment of the
subordinated debt securities may not be accelerated because of a breach of 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
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obligations in the defeasance trust could be less than the principal and
interest then due on the subordinated debt securities defeased, 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. (Sections 1301 to 1305 of the subordinated indenture.)
Tax Effects of Defeasance of Debt Securities. Under current United States
federal income tax law, the defeasance of either senior or subordinated debt
securities as described 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. You should consult your 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 subordinated debt securities, covenant
defeasance of subordinated debt securities generally should not be treated as a
taxable exchange.
Subordination
Unless we establish other provisions through a board resolution, officer's
certificate or supplemental indenture, which we will describe in a prospectus
supplement, the debt securities issued under the subordinated indenture will be
subordinated in the following manner:
o If our assets are distributed upon our dissolution, winding up,
liquidation or reorganization, the payment of principal, premium and
interest on any subordinated debt securities will be subordinated, to
the extent provided in the subordinated indenture, to the prior
payment in full of all senior indebtedness (as defined below),
including senior debt securities. However, our obligation to pay
principal, premium or interest on the subordinated debt securities
will not otherwise be affected.
o No payment on account of principal, premium, 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, sinking fund or
interest on senior indebtedness.
o If, while we are in default on senior indebtedness, any payment is
received by the indenture trustee under the subordinated indenture or
the holders of any of the subordinated debt securities before we have
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.
o 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.
(Sections 1401 to 1412 of the subordinated indenture.)
The term "senior indebtedness" means the principal, premium, interest and
any other payment due on any of the following, whether existing before the
subordinated indenture was signed or incurred after it was signed: (a) all of
our indebtedness evidenced by notes, debentures, bonds or other securities sold
by us for money or other obligations for money borrowed, (b) all indebtedness of
others of the kinds described in the preceding clause assumed or guaranteed in
any manner by us, and (c) all renewals, extensions or refundings of indebtedness
of the kinds described in either of the preceding clauses, unless it is
expressly provided in the case of any particular obligation described above that
it is not superior in right of payment to or is pari passu with the subordinated
debt securities. Senior indebtedness includes all of our first and refunding
mortgage bonds and all of the senior debt securities. (Section 101 of the
subordinated indenture.)
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Due to the subordination, if our assets are distributed upon insolvency,
some or all of our general creditors may recover more ratably than holders of
subordinated debt securities. The subordinated indenture or applicable
supplemental indenture may state that its subordination provisions will not
apply to money and securities held in trust under the satisfaction and discharge
and the legal defeasance provisions of the subordinated 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.
Concerning the Indenture Trustees
The Bank of New York and certain of its affiliates act as trustees for our
first and refunding mortgage bonds and certain pollution control bonds issued on
our behalf and for certain securities issued by our parent, Edison International
The Chase Manhattan Bank acts as trustee for certain securities issued by
our parent, Edison International. We and Edison International maintain bank
deposits with The Chase Manhattan Bank and may borrow money from the bank from
time to time.
Limitations on Issuance of Bearer Securities
Senior debt securities may be issued in the form of bearer securities.
Subordinated debt securities may not be issued in bearer form unless the
subordinated indenture is amended to provide for bearer securities.
In compliance with United States federal tax laws and regulations, bearer
securities generally may not be offered or sold during a restricted period to a
person within the United States or its possessions or to or for the account or
benefit of a United States person. However, subject to certain restrictions and
limitations, offers or sales may be made to:
o the United States office of an international organization (as defined
in Section 7701(a)(18) of the Internal Revenue Code of 1986 and the
regulations thereunder);
o the United States office of a foreign central bank (as defined in
Section 895 of the Internal Revenue Code of 1986 and the regulations
thereunder); and
o United States persons that are (a) foreign branches of United States
financial institutions (as defined in Treasury Regulation Section
1.165-12(c)(1)(v)), which are purchasing for their own account or for
resale, or (b) persons that acquire and hold bearer securities through
a foreign branch of a U.S. financial institution, and in either case,
the financial institution agrees to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986.
Definitive bearer securities will not be delivered during the same
restricted period within the United States and will not be delivered in any
event unless the beneficial owner of the bearer securities provides the required
certification as to non-United States beneficial ownership. The restricted
period for these purposes is the period beginning upon the earlier of the issue
date of any bearer securities or the date on which those bearer securities are
first offered and ending 40 days after the issue date or later date in the case
of any unsold original allotment or subscription.
Bearer securities will bear the following legend on their face and on any
interest coupons which may be detached therefrom or, if the obligation is
evidenced by a book entry, in the book of record in which the book entry is
made: "Any United States person who holds this obligation will be subject to
limitations under the United States income tax laws, including the limitations
provided in Sections 165(j) and 1287(a) of the United States Internal Revenue
Code." The sections referred to in the legend provide that a United States
person who holds a bearer security will not be allowed to deduct any loss
realized on the sale, exchange or redemption of the bearer security and any gain
(which might otherwise be characterized as capital gain) recognized on the sale,
exchange or redemption will be treated as ordinary income.
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As used herein, "United States person" means an individual who is a citizen
or resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
Governing Law
The senior indenture and the senior debt securities will be governed by and
construed in accordance with the laws of the State of New York. The subordinated
indenture and the subordinated debt securities will 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 indenture trustee will be governed by
the laws of the State of New York. (Section 112.)
Description of the Preferred Stock
The following description of Southern California Edison's preferred stock
is a summary, and it does not describe every aspect of the preferred stock.
Southern California Edison's amended, restated and corrected articles of
incorporation, including the certificates of determination of preferences
relating to outstanding series of preferred stock, which are collectively
referred to in this prospectus as the "articles of incorporation," contain the
full legal text of the matters described in this section. This summary is
subject to and qualified by the articles of incorporation. Therefore, you should
read carefully the detailed provisions of the articles of incorporation, which
we have incorporated by reference as an exhibit to the registration statement
that includes this prospectus. Whenever we refer to particular sections or
defined terms of the articles of incorporation in this prospectus or in a
prospectus supplement, those sections or defined terms are incorporated by
reference herein or in the prospectus supplement. This summary also is subject
to and qualified by the description of the particular terms of the preferred
stock in the applicable prospectus supplement.
General
The rights, preferences and privileges of the preferred stock are
established by the articles of incorporation. In this summary, we have included
parenthetical references to pertinent sections of the articles of incorporation.
Whenever we offer and sell preferred stock, our board of directors will adopt
and we will file with the California Secretary of State a new certificate of
determination of preferences to establish the terms of each new series of
preferred stock. We will also set forth the terms in a prospectus supplement.
Southern California Edison's authorized capital stock consists of the
following classes of shares of stock with the following number of shares per
class:
o cumulative preferred stock - 24,000,000 shares with a par value of $25
per share;
o $100 cumulative preferred stock - 12,000,000 shares with a par value
of $100 per share;
o preference stock - 50,000,000 shares with no par value; and
o common stock - 560,000,000 shares with no par value.
As of June 30, 2000, Southern California Edison had issued and outstanding
5,150,198 shares of cumulative preferred stock, 2,557,000 shares of $100
cumulative preferred stock, no shares of preference stock, and 434,888,104
shares of common stock. All of the outstanding shares of common stock are owned
by Edison International, our corporate parent.
The Southern California Edison board of directors may authorize the
preferred stock to be issued from time to time as one or more series of
cumulative preferred stock or $100 cumulative preferred stock. For each new
series of preferred stock, the board of directors, within the limitations and
restrictions stated in Article Sixth of the articles of incorporation, may fix
the number of shares, dividend rights, dividend rate, conversion rights, voting
rights (in addition to the voting rights provided in the articles of
incorporation), rights and terms of redemption (including sinking fund
provisions), redemption price or prices and/or
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voluntary liquidation preferences. All shares of preferred stock will be
fully paid and nonassessable and will not have any preemptive or similar rights.
We will set forth in a prospectus supplement the following terms of each
series of preferred stock offered through this prospectus:
o the designation of the series;
o the total number of shares;
o the price or prices at which shares will be offered and sold;
o the dividend rate and dividend payment dates;
o any mandatory or optional sinking fund, purchase fund or similar
provisions;
o the dates, prices and other terms of any optional or mandatory
redemption;
o any voluntary liquidation preferences;
o the procedures for auction and remarketing, if any, of the shares;
o any listing of the shares on a securities exchange; and
o any other specific terms, preferences, rights, limitations or
restrictions.
Rank of the Preferred Stock
Unless we state otherwise in a prospectus supplement, all series of
preferred stock, whether of cumulative preferred stock or $100 cumulative
preferred stock, will rank equally as to dividends and payments upon
liquidation, dissolution or winding up. The preferred stock ranks senior to all
of the preference stock and common stock. Currently, we have no equity
securities outstanding or authorized that would rank senior to the preferred
stock.
Dividend Rights
Each series of preferred stock is entitled to receive, in preference to the
holders of preference stock and common stock, as declared by the Southern
California Edison board of directors, cumulative quarterly cash dividends at the
rate fixed for such series and no more. (Article Sixth, Section 2(a).)
Whenever dividends on any shares of the preferred stock are in default, we
may not:
o pay or declare any dividend on the preference stock or common stock,
except a dividend payable in preference stock or common stock;
o purchase or redeem any shares of preference stock or common stock,
except with the proceeds of any sale of shares of preference stock or
common stock; or
o redeem less than all of the preferred stock or purchase any shares of
preferred stock, except through offers to all holders of preferred
stock in proportion to the par values and market prices per share of
the respective classes.
(Article Sixth, Section 2(a), 2(e).)
The indenture securing Southern California Edison's first and refunding
mortgage bonds provides, in substance, that Southern California Edison cannot
pay any cash dividends except out of surplus at December 31, 1921, and out of
earnings since then. None of Southern California Edison's present earnings
reinvested in the business are restricted by this provision. Southern California
Edison does not expect this provision to have any adverse effect on its ability
to pay dividends on the preferred stock.
Voting Rights
Each share of cumulative preferred stock is entitled to six votes and each
share of $100 cumulative preferred stock is entitled to two votes on all matters
submitted to a vote of shareholders. (Article Sixth,
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Section 2(c).) Votes may not be cumulated in electing directors. The
preferred capital stock of Southern California Edison may be increased or
diminished at a meeting of shareholders by a vote of at least two-thirds of the
entire subscribed or issued capital stock. (Article Fifth, Section 1.) Because
Edison International owns and can vote all the shares of the common stock, which
comprise more than 80 percent of the total shareholder votes, the holders of the
preferred stock will not be able to elect any directors or influence the outcome
of any other matters submitted to a vote of shareholders, except as described
below.
The holders of cumulative preferred stock and/or the holders of $100
cumulative preferred stock are entitled to vote as separate classes, or as
series within either class, on certain matters affecting their interests. The
affirmative vote or written consent of the holders of at least two-thirds of the
shares of the affected class or series is required to:
o amend the articles of incorporation to change certain basic terms of
the class or series with respect to dividends, redemption,
liquidation, conversion, voting or priority; or
o authorize, create or increase in amount any stock ranking senior to
the class or series.
(Article Sixth, Section 2(c)(1), 2(c)(3).)
The affirmative vote or written consent of the holders of at least a
majority of both the cumulative preferred stock and the $100 cumulative
preferred stock, as separate classes, is required to:
o increase the amount of either class, or authorize, create or increase
in amount any stock ranking on a parity with the preferred stock;
o merge or consolidate Southern California Edison, or sell, lease or
convey all or substantially all of the property or business of
Southern California Edison, or part with control of it; or
o issue any additional shares of preferred stock, or of any class
ranking senior to or on a parity with the preferred stock, unless the
consolidated income of Southern California Edison and its subsidiaries
for any 36 consecutive months within the last 39 months is at least
one and one-half times the total of the interest requirements on
outstanding debt and dividend requirements on outstanding preferred
stock for three years.
(Article Sixth, Section 2(c)(2), 2(c)(4).)
However, such vote or consent of the holders of preferred stock will not be
required if, at or prior to the time when any of the actions mentioned above
takes place, all of the preferred stock the consent of which would otherwise be
required is redeemed in accordance with the articles of incorporation.
If there is a default in the payment of six or more quarterly dividends,
whether consecutive or not, on any series of preferred stock or preference
stock, then the holders of the preferred stock and preference stock, voting
together as a single class, will have the right to elect two directors until the
dividends have been paid or declared and set apart for payment. (Article Fifth,
Section 2.)
Liquidation Rights
If Southern California Edison ever liquidates, dissolves or winds up its
affairs, the holders of preferred stock will be entitled to receive liquidation
payments before any distribution is made to holders of preference stock or
common stock. The amount of the payments may vary depending on whether the
liquidation is voluntary or involuntary. The holders of each series of preferred
stock will be entitled to receive:
o in the event of an involuntary liquidation, the par value of the
shares of the series; or
o in the event of a voluntary liquidation, the liquidation preference
fixed by the board of directors at the time the series was issued;
together, in either event, with any accrued dividends not previously received.
The voluntary liquidation preference for each series of preferred stock now
outstanding is an amount equal to the redemption price for
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the series at the time of the liquidation, together with any accrued
dividends not previously paid. If the amounts payable to the holders of all
outstanding shares of preferred stock are not paid in full, the holders of
preferred stock will share ratably in any distribution of assets in proportion
to the full amounts to which they would otherwise be respectively entitled.
(Article Sixth, Section 2(b).)
Redemption
The Southern California Edison board of directors may elect to redeem all
or part of any series of preferred stock at any time, subject to any limitations
set when the series is authorized. The redemption prices for each series of
preferred stock will be set when we issue the series and will include an amount
equal to all accumulated and unpaid dividends on the shares to be redeemed. We
must publish notice in newspapers in Los Angeles, California and Manhattan in
New York, New York between 30 and 60 days before the redemption date. We also
will mail a notice to holders of the shares to be redeemed at their addresses on
our books between 30 and 60 days before the redemption date. If we choose to
redeem less than all the shares of any series, the Southern California Edison
board of directors will either determine the shares to be redeemed by lot or
redeem the shares pro rata. If we give notice of redemption and deposit
sufficient funds into a trust fund to redeem shares of preferred stock, those
shares will not accrue dividends after the redemption date and will no longer be
considered to be outstanding shares. (Article Sixth, Section 2(d).)
Other Provisions
Holders of shares of preferred stock will not have any conversion or
preemptive rights. The preferred stock, when issued, will be fully paid and
nonassessable.
Registration and Transfer
Transfers of the preferred stock will be effected by Wells Fargo Bank
Minnesota, N.A., 161 N. Concord Exchange, South St. Paul, Minnesoata 55075. The
registrar for the preferred stock will be Norwest Bank Minnesota, N.A.
Description of Preferred Securities
This section and following sections discuss the general terms and
conditions of the preferred securities that we and the trusts may offer through
this prospectus, as well as provisions of the related trust agreements,
guarantee agreements and expense agreements to be entered into by Southern
California Edison. Those agreements contain the full legal text of the matters
described in this and following sections. Because these sections are summaries,
they do not describe every aspect of the preferred securities or the related
agreements. These summaries are subject to and qualified by all the provisions
of the applicable agreements, including definitions of terms used in the
agreements. We also include references in parentheses to certain sections of the
agreements. Whenever we refer to particular sections or defined terms of the
agreements in this prospectus or in a prospectus supplement, these sections or
defined terms are incorporated by reference herein or in the prospectus
supplement. These summaries also are subject to and qualified by the description
of the particular terms of the preferred securities in the applicable prospectus
supplement.
General
Southern California Edison will enter into an amended and restated trust
agreement (referred to as a "trust agreement" in this prospectus) for each of
SCE Trust I and SCE Trust II before each trust issues any preferred securities.
Each trust agreement will authorize the regular trustees to issue on behalf of
each trust one series of preferred securities that 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 Southern California Edison. 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. (Sections 2.4
to 2.6.)
Southern California Edison also will enter into a guarantee agreement
(referred to as a "preferred securities guarantee" in this prospectus) with each
trust, under which Southern California Edison will agree to
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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" below.
The assets of a trust available for distribution to the holders of its
preferred securities will be limited to payments from Southern California Edison
under the series of subordinated debt securities held by the trust. If Southern
California Edison 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 Southern
California Edison'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 Southern California Edison 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 of 1939. 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 of 1939.
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 of 1939 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:
o the name of the preferred securities;
o the dollar amount and number of securities issued;
o any provision relating to deferral of distribution payments;
o 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;
o the date from which distributions will be cumulative;
o 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;
o the terms and conditions, if any, upon which the applicable series of
subordinated debt securities may be distributed to holders of the
preferred securities;
o the voting rights, if any, of holders of the preferred securities;
o any securities exchange on which the preferred securities will be
listed;
o 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
o any other relevant rights, preferences, privileges, limitations or
restrictions of the preferred securities.
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.
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Liquidation Distribution Upon Dissolution
Unless otherwise specified in an applicable prospectus supplement, each
trust agreement states that the related trust shall be dissolved:
o on the expiration of the term of the trust;
o upon the bankruptcy, dissolution or liquidation of Southern California
Edison;
o upon direction by Southern California Edison 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;
o upon the redemption of all of the preferred securities of the trust in
connection with the redemption of all of the related subordinated debt
securities; or
o upon entry of a court order for the dissolution of the trust.
(Sections 9.1 and 9.2)
Unless otherwise specified in an applicable prospectus supplement, in the
event of a dissolution other than as described in the fourth bullet point 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:
o 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
o 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. (Section 9.4)
Events of Default
An "event of default" under a trust agreement occurs if:
o an event of default occurs under the subordinated indenture relating
to a series of subordinated debt securities (see "Description of Debt
Securities--Events of Default and Remedies for Subordinated Debt
Securities" above);
o the trust does not pay any distribution on its preferred or common
securities within 30 days of when it is due;
o the trust does pay any redemption payment on its preferred or common
securities when it is due;
o the trustees remain in breach of any other covenant or warranty in the
trust agreement for 90 days after receiving notice from the holders of
at least 25 percent in aggregate liquidation amount of the outstanding
preferred securities; or
o the property trustee files for bankruptcy or becomes subject to
specified proceedings involving bankruptcy, insolvency or
reorganization, and we fail to appoint a successor property trustee
within 60 days.
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(Section 1.1.)
Southern California Edison 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. (Section 8.15.)
If an event of default occurs under the subordinated indenture, and the
indenture trustee and the holders of not less than 25 percent 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 percent in aggregate liquidation amount
of the outstanding preferred securities of the applicable trust will have the
right to declare such principal immediately due and payable, by providing notice
to Southern California Edison and the indenture trustee. (Section 5.14(b).)
If Southern California Edison 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 Southern California Edison,
to the fullest extent permitted by law, to collect its pro rata share of
payments owed. (Section 5.14(c).)
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, except as described below or as
described above under the heading "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:
o the successor entity either
|X| expressly assumes all of the obligations of the trust relating to
its preferred securities; or
|X| substitutes for the trust's preferred securities other securities
having substantially the same terms as the preferred securities,
so long as those successor securities rank the same as the
preferred securities for distributions and payments upon
liquidation, redemption and otherwise;
o Southern California Edison expressly appoints a trustee of the
successor entity who has substantial the same powers and duties as the
property trustee of the trust as the holder of the particular series
of subordinated debt securities;
o 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;
o the transaction does not cause the preferred securities or any
successor securities to be downgraded by any national rating agency;
o the transaction does not adversely affect the rights, preferences and
privileges of the holders of the preferred securities or any successor
securities in any material way;
o the successor entity has a purpose substantially identical to that of
the trust;
o prior to the transaction, Southern California Edison has received an
opinion of counsel from a nationally recognized law firm stating that:
|X| the transaction 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
|X| following the transaction, neither the trust nor the successor
entity will be required to register as an investment company
under the Investment Company Act of 1940; and
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o Southern California Edison 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.
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. (Section 9.5.)
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 the headings "Consolidation, Merger or Amalgamation of the
Trusts" and "Description of the Preferred Securities Guarantees--Amendments and
Assignment" above, and as otherwise required by law and the trust agreement for
the trust. On any matter as to which voting rights exist, the holders of
preferred securities will be entitled to one vote for each liquidation amount
(as provided in the applicable trust agreement) of preferred securities they
hold. (Sections 6.1 and 6.4.)
If any proposed amendment to the trust agreement of a trust provides for,
or the regular trustees of the trust otherwise propose to effect:
o 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
o 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. (Section 6.1(c).)
The trust agreement of a trust may be amended from time to time by Southern
California Edison and the regular trustees of the trust, without the consent of
the holders of preferred securities of the trust, to:
o 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
o 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 of 1940.
Except as provided in the next paragraph, other amendments to the trust
agreement of a trust may be made by Southern California Edison and the trustees
of the trust upon:
o approval of the holders of a majority in aggregate liquidation amount
of the outstanding preferred securities of the trust; and
o receipt by the trustees of the trust 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 of 1940.
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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:
o 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
o 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:
o cause the related trust to be characterized as other than a grantor
trust for United States federal income tax purposes;
o cause the related trust to be deemed to be an "investment company"
which is required to be registered under the Investment Company Act of
1940; or
o impose any additional obligation on Southern California Edison, the
property trustee or the Delaware trustee without its consent.
Neither the property trustee nor the Delaware trustee is required to enter
into any amendment to a trust agreement that affects its own rights, duties and
immunities under the trust agreement. The property trustee is entitled to
receive an opinion of counsel and an officer's certificate stating that any
amendment complies with the trust agreement and any conditions precedent to the
amendment have been satisfied. (Section 10.2.)
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:
o 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;
o waive any default that is waivable under the subordinated indenture;
o cancel an acceleration of the principal of the subordinated debt
securities; or
o 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.
The trustees of the trust may not revoke any action previously authorized by a
vote of the holders of the preferred securities except by a subsequent vote of
the holders of the 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. (Section 6.1(b).)
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.
(Section 8.2.)
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 majority in aggregate liquidation amount of the trust's preferred
securities may remove or replace the property and Delaware trustees. The
resignation or removal of any trustee of the trusts will be effective only
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on the acceptance of appointment by the successor trustee in accordance
with the provisions of the trust agreement for the trust. (Sections 8.10 and
8.11.)
Information Concerning the Property Trustees
For matters relating to compliance with the Trust Indenture Act of 1939,
the property trustee of each trust will have all of the duties and
responsibilities of an indenture trustee under the Trust Indenture Act of 1939.
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. (Sections 8.1 and 8.3.)
The property trustee for each of the trusts is the same entity and will
also serve as the indenture trustee under the subordinated indenture and the
guarantee trustee under each of the guarantee agreements. Southern California
Edison and certain of its affiliates 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:
o it will not be deemed to be an "investment company" required to be
registered under the Investment Company Act of 1940;
o it will be classified as a grantor trust for United States federal
income tax purposes; and
o the subordinated debt securities held by it will be treated as
indebtedness of Southern California Edison for United States federal
income tax purposes.
Southern California Edison 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 Southern California
Edison and the trustees of the trust determine to be necessary or desirable for
such purposes. (Section 2.7(d).)
Registered holders of preferred securities have no preemptive or similar
rights. (Section 5.14(a).)
A trust may not borrow money, issue debt, execute mortgages or pledge any
of its assets. (Section 2.7(b).)
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. (Section
10.4.)
Description of Preferred Securities Guarantees
General
Southern California Edison will execute a guarantee agreement, referred to
herein as 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
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Indenture Act of 1939. The Chase Manhattan Bank will act as indenture
trustee, referred to herein as the "guarantee trustee," under each preferred
securities guarantee for the purposes of compliance with the Trust Indenture Act
of 1939.
The guarantee trustee will hold each preferred securities guarantee for the
benefit of the preferred securities holders of the applicable trust. (Section
3.1.)
Southern California Edison 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,
referred to herein as "preferred securities guarantee payments," will be covered
by the applicable preferred securities guarantee:
o 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;
o the redemption price, to the extent that the trust has funds available
to make the payment; and
o 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:
|X| 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
|X| the amount of assets of the trust remaining available for
distribution to holders of its preferred securities upon
liquidation of the trust.
Southern California Edison'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. (Sections 5.1 to 5.7.)
Status of the Preferred Securities Guarantees
Each preferred securities guarantee will constitute an unsecured obligation
of Southern California Edison and will rank:
o subordinate and junior in right of payment to all of Southern
California Edison's other liabilities except those that rank equally
or are subordinate by their terms; and
o equal with any other preferred securities guarantee now or hereafter
issued by Southern California Edison 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 Southern California Edison, 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. (Sections 5.5, 6.1 and 6.2.)
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
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aggregate liquidation amount of the preferred securities. A description of the
way to obtain any approval appears under the heading "Description of Preferred
Securities--Voting Rights; Amendment of Trust Agreements" above. All guarantees
and agreements contained in a preferred securities guarantee will be binding on
Southern California Edison's successors, assigns, receivers, trustees and
representatives and are for the benefit of the holders of the applicable
preferred securities. (Sections 8.1 and 8.2.)
Events of Default
An event of default under a preferred securities guarantee occurs if
Southern California Edison fails to make any of its required payments when due
or fails to perform any of its other obligations under the preferred securities
guarantee for more than 30 days. (Section 1.1.)
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. In addition, any
holder of preferred securities may bring a legal proceeding directly against
Southern California Edison to enforce its rights under the preferred securities
guarantee, without first taking legal action against the guarantee trustee, the
trust or any other person. (Section 5.4.)
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. (Sections 3.1 and 3.2.)
Termination of the Preferred Securities Guarantees
Each preferred securities guarantee will terminate upon full payment of the
redemption price of all the applicable preferred securities, distribution of the
related subordinated debt securities to the holders of the preferred securities,
or full payment of the amounts payable in accordance with the applicable trust
agreement upon liquidation of the applicable trust. 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. (Section 7.1.)
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. (Section 8.6.)
Description of Expense Agreements
Southern California Edison will execute an expense agreement at the same
time that a trust issues preferred securities. Under the expense agreement,
Southern California Edison 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. The creditors of the trust
will be entitled to enforce the expense agreement. (Section 1.1.)
Southern California Edison'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
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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 Southern California
Edison to the extent described under the heading "Description of Preferred
Securities Guarantees" above. No single document executed by Southern California
Edison 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 Southern California
Edison's obligations under the applicable preferred securities guarantee, trust
agreement, subordinated indenture, 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 Southern California Edison 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:
o 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;
o 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;
o Southern California Edison 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
o 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 Southern California Edison 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 Southern California Edison or seek
other remedies to collect its pro rata share of payments owed. If a holder sues
Southern California Edison to collect payment, then Southern California Edison
will assume the holder's rights as a holder of preferred securities under the
trust's trust agreement to the extent Southern California Edison makes a payment
to the holder in any legal action.
A holder of any preferred security may sue Southern California Edison, 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 related schedules of Southern
California Edison 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 included herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
reports.
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Validity of the Securities and Preferred Securities Guarantees
The validity of the debt securities, the preferred stock, the preferred
securities and the preferred securities guarantees offered by this prospectus
will be passed upon for Southern California Edison by Stephen E. Pickett, its
Vice President and General Counsel, Barbara E. Mathews, its Assistant General
Counsel, or Kenneth S. Stewart, its Assistant General Counsel, and for any
underwriters by Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los
Angeles, California 90071. As to matters of New York law, Mr. Pickett, Ms.
Mathews or Mr. Stewart will rely upon the opinion of Gibson, Dunn & Crutcher
LLP. Richards, Layton & Finger, P.A. will pass upon certain matters of Delaware
law relating to the validity of the preferred securities for Southern California
Edison and the trusts.
Mr. Pickett, Ms. Mathews and Mr. Stewart are salaried employees of Southern
California Edison and share in the benefits available to employees. As of June
30, 2000, their direct or indirect interests in shares of Edison International's
common stock were: Mr. Pickett -- 197,586 shares, Ms. Mathews -- 94,948 shares,
and Mr. Stewart -- 58,603 shares. These shares include those beneficially owned
through an employee stock savings plan and a dividend reinvestment plan, and
options awarded under an executive incentive plan. They own no securities of
Southern California Edison or the trusts.
From time to time, Gibson, Dunn & Crutcher LLP performs legal services for
the Company and its affiliates relating to special matters.
Plan of Distribution
We may sell the securities described in this prospectus from time to time
in one or more transactions:
o to purchasers directly;
o to underwriters for public offering and sale by them;
o through agents;
o through dealers; or
o 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:
o a fixed price or prices, which may be changed;
o market prices prevailing at the time of sale;
o prices related to such prevailing market prices; or
o 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. We will describe
in a prospectus supplement the terms of any sale of securities.
To Underwriters
The applicable prospectus supplement will name any underwriter involved in
a sale of securities. Underwriters may offer and sell securities at a fixed
price or prices, which may be changed, or from time to time at market prices or
at negotiated prices. Underwriters may be deemed to have received compensation
from us from sales of securities in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of securities for
whom they may act as agent. Underwriters may be involved in any at the market
offering of equity securities by or on our behalf.
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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 applicable prospectus supplement, any such agent
will be acting on a reasonable efforts basis for the period of its appointment.
If we use a dealer in the sale of the securities, we will sell the
securities to the dealer. 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. Institutions with whom the contracts, when authorized, may be
made include commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and other
institutions, but shall in all cases be subject to the approval of Southern
California Edison. Such contracts will be subject to only those conditions set
forth in the applicable prospectus supplement and the condition that the
purchase by an institution of the securities covered under any such contract
shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which that institution is subject.
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 of 1933, 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 of 1933. We may have agreements with
underwriters, dealers and agents to indemnify them against certain civil
liabilities, including liabilities under the Securities Act of 1933, 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.
To facilitate a debt securities offering, any underwriter may engage in
over-allotment, stabilizing transactions, short covering transactions and
penalty bids in accordance with Regulation M under the Securities Exchange Act
of 1934.
o Over-allotment involves sales in excess of the offering size, which
creates a short position.
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o Stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum.
o Short covering positions involve purchases of the securities in the
open market after the distribution is completed to cover short
positions.
o Penalty bids permit the underwriters to reclaim a selling concession
from a dealer when the securities originally sold by the dealer are
purchased in a covering transaction to cover short positions.
Those activities may cause the price of the debt securities to be higher
than it otherwise would be. If commenced, the activities may be discontinued by
the underwriters at any time.
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Where You Can Find More Information
Available Information
We file reports, proxy statements and other information with the Securities
and Exchange Commission. You can inspect and copy these reports, proxy
statements and other information at the Public Reference Room maintained by the
Securities and Exchange Commission, and at their Regional Offices as follows:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center, Suite 1400
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Chicago, Illinois 60661-2551
You may also obtain copies of this information by mail at prescribed rates
from the Public Reference Section of the Securities and Exchange Commission, 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549. You can obtain further
information on the operation of the Securities and Exchange Commission's Public
Reference Room by calling them at 1-800-SEC-0330.
The Securities and Exchange Commission also maintains an Internet web site
that contains reports, proxy statements and other information about issuers,
such as Southern California Edison, who file electronically with the Securities
and Exchange Commission. The address of that web site is http://www.sec.gov.
We have listed some series of our preferred stock on the American Stock
Exchange and the Pacific Exchange. You may inspect reports, proxy statements and
other information concerning Southern California Edison at the offices of the
exchanges as follows:
American Stock Exchange Pacific Exchange
86 Trinity Place 301 Pine Street
New York, New York 10006-1881 San Francisco, CA 94104
You may also review reports, proxy statements and other information about
Southern California Edison at our offices at 2244 Walnut Grove Avenue, Rosemead,
California 91770. You may view and obtain copies of some of those reports and
other information on the web site maintained by Southern California Edison's
parent, Edison International, at http://www.edison.com.
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission. You may obtain the full registration
statement from the Securities and Exchange Commission or us, as indicated below.
We filed forms or copies of the articles of incorporation, indentures and other
documents establishing the terms of the offered securities as exhibits to the
registration statement. Statements in this prospectus or any supplement 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 Securities and Exchange Commission allow us to
"incorporate by reference" into this prospectus, which means that we can
disclose important information to you by referring you to another document filed
separately with the Securities and Exchange Commission. The information
incorporated by reference is considered to be part of this prospectus, and later
information that we file with the Securities and Exchange Commission will
automatically update and supersede the earlier information. This prospectus
incorporates by reference the documents listed below that we have previously
filed or may file in the future with the Securities and Exchange Commission.
These documents contain important information about Southern California Edison.
o Our Annual Report on Form 10-K for the year ended December 31, 1999.
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o Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
2000 and June 30, 2000.
o The "Description of Registrant's Securities to be Registered" on page
2 of our Registration Statement on Form 8-A dated February 13, 1999,
which incorporates by reference the material appearing under the
headings "Description of the Preferred Stock" in the prospectus dated
February 21, 1990, and "Certain Terms of the New Stock" in the
prospectus supplement dated January 21, 1992, contained in our
registration statement on Form S-3 (Registration Number 33-33406).
o 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
between the date of this prospectus and the end of the offering of the
securities described in this prospectus. Those documents include
Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current
Reports on Form 8-K, and proxy statements mailed to our shareholders.
Upon request, we will provide a copy of any of these filings without charge
to each person to whom a copy of this prospectus has been delivered. You may
request a copy of these filings by writing or calling us at:
Southern California Edison Company
2244 Walnut Grove Avenue
P.O. Box 800
Rosemead, California 91770
Attention: Corporate Governance
Telephone (626) 302-2662
Fax (626) 302-2610
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of estimated expenses in connection with the
issuance and distribution of the securities being registered, other than
underwriting discounts and commissions.
1. Securities and Exchange Commission Registration Fee........ $260,385
2. California Public Utilities Commission Fee................. 106,000
3. Printing, Engraving and Freight Expenses................... 3,000
4. Legal Fees and Expenses.................................... 175,000
5. Accounting Fees and Expenses............................... 30,000
6. Trustee Fees and Expenses.................................. 8,400
7. Blue Sky and Legal Investment Fees and Expenses............ 12,000
8. Rating Agency Fees......................................... 123,000
9. Miscellaneous.............................................. 6,000
--------
Total................................................ $723,785
========
Item 15. Indemnification of Directors and Officers.
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 provision in excess of that permitted in Section
317, subject to certain limitations.
Article Eighth of the Restated Articles of Incorporation of Southern
California Edison Company authorizes Southern California Edison Company 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 Southern California Edison Company
contains provisions implementing the authority granted in Article Eighth of the
Restated Articles of Incorporation. The Amended Bylaws provide for the
indemnification of any director or officer of Southern California Edison
Company, or any person acting at the request of Southern California Edison
Company 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 Southern California Edison Company,
subject to the terms of any agreement between Southern California Edison Company
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
directors' or officers' liability insurance policy maintained by Southern
California Edison Company; (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 Southern California Edison Company 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 Southern California Edison
Company 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 Southern California Edison Company 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 Southern California Edison Company; (viii) for
acts or omissions that constitute an unexcused pattern of inattention that
amounts to an abdication of the director's or officer's duties to Southern
California Edison Company or its shareholders; (ix) for costs, charges,
expenses, liabilities and losses arising under Section 310 or 316 of the
California Corporations Code; or (x) as to
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circumstances in which indemnity is expressly prohibited by Section 317 of
the California Corporations 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 Southern California Edison Company for breach of
duty to Southern California Edison Company or its shareholders. The Amended
Bylaws of Southern California Edison Company also provide that Southern
California Edison Company 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 of
Southern California Edison Company or (b) a proceeding (or part thereof) other
than a proceeding by or in the name of Southern California Edison Company to
procure a judgment in its favor, only if any settlement of such a proceeding is
approved in writing by Southern California Edison Company. 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.
Southern California Edison Company has directors' and officers' liability
insurance policies in force insuring directors and officers of Southern
California Edison Company and its subsidiaries. Southern California Edison
Company has also entered into written agreements with each of its directors
incorporating the indemnification provisions of its Amended Bylaws.
Item 16. Exhibits.
See Exhibit Index.
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 of 1933;
(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 percent 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 paragraphs (i) and (ii) above 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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 a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
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(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrants' annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 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 (i) use its best efforts to distribute prior to the opening of bids,
to prospective bidders, underwriters and dealers, a reasonable number of copies
of a prospectus which at that time meets the requirements of Section 10(a) of
the Securities Act of 1933, and relating to any securities offered at
competitive bidding, as contained in the registration statement, together with
any supplements thereto, and (ii) file an amendment to the registration
statement reflecting the results of bidding, the terms of the reoffering and
related matters to the extent required by the applicable form, not later than
the first use, authorized by the registrant after the opening of bids, of a
prospectus relating to any securities offered at competitive bidding, unless no
further public offering of such securities by the registrant and no reoffering
of such securities by the purchasers is proposed to be made.
(6) 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 of 1939 in accordance with the rules and regulations prescribed by
the Securities and Exchange Commission under Section 305(b)(2) of the Trust
Indenture Act of 1939.
(7) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(8) That, for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described in 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 of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrants 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, the registrants will, unless in
the opinion of their counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by them is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Southern
California Edison Company 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, State of California on the
29th day of August, 2000.
SOUTHERN CALIFORNIA EDISON COMPANY
By Robert C. Boada
--------------------------------
(Robert C. Boada
Treasurer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Principal Executive Officer:
Stephen E. Frank* Chairman of the Board, August 29, 2000
President and Chief
Executive Officer
Principal Financial Officer:
W. James Scilacci* Vice President and August 29, 2000
Chief Financial Officer
Controller or Principal Accounting Officer:
Thomas M. Noonan* Vice President and August 29, 2000
Controller
Majority of Board of Directors:
Warren Christopher* Director August 29, 2000
Stephen E. Frank* Director August 29, 2000
Joan C. Hanley* Director August 29, 2000
Carl F. Huntsinger* Director August 29, 2000
Charles D. Miller* Director August 29, 2000
Luis G. Nogales* Director August 29, 2000
Ronald L. Olson* Director August 29, 2000
James M. Rosser* Director August 29, 2000
Robert H. Smith* Director August 29, 2000
Thomas C. Sutton* Director August 29, 2000
Daniel M. Tellep* Director August 29, 2000
Edward Zapanta* Director August 29, 2000
</TABLE>
*By Robert C. Boada
-----------------------------------
(Robert C. Boada, Attorney-in-Fact)
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, SCE Trust I
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, State of California on the 29th day of
August, 2000.
SCE TRUST I
By: SOUTHERN CALIFORNIA EDISON COMPANY,
as Depositor
By Kenneth S. Stewart
--------------------------------
Kenneth S. Stewart
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, SCE Trust II
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, State of California on the 29th day of
August, 2000.
SCE TRUST II
By: SOUTHERN CALIFORNIA EDISON COMPANY,
as Depositor
By Kenneth S. Stewart
--------------------------------
Kenneth S. Stewart
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
1.1 Form of Underwriting Agreement (Senior Debt Securities)
1.2 Form of Underwriting Agreement (Subordinated Debt Securities)+
1.3 Form of Underwriting Agreement (Preferred Stock)+
1.4 Form of Underwriting Agreement (Preferred Securities)+
3.1 Certificate of Amendment and Restated Articles of Incorporation of Southern
California Edison Company, effective June 1, 1993 (File No. 1-2313, Form
10-K for the year ended December 31, 1993)*
3.2 Certificate of Correction of Restated Articles of Incorporation of Southern
California Edison Company, effective August 21, 1997 (File No. 1-2313, Form
10-Q for the quarter ended September 30, 1997)*
3.3 Amended Bylaws of Southern California Edison Company, effective February
17, 2000 (File No. 1-2313, Form 10-K for the year ended December 31, 1999)*
3.4 Certificate of Trust of SCE Trust I
3.5 Certificate of Trust of SCE Trust II
4.1 Indenture for Senior Debt Securities (File No. 1-2313, Form 8-K dated
January 28, 1993)*
4.2 Form of Indenture for Subordinated Debt Securities
4.3 Form of Senior Debt Security (included in Exhibit 4.1)*
4.4 Form of Subordinated Debt Security (included in Exhibit 4.2)
4.5 Form of Preferred Security (included in Exhibit 4.9)
4.6 Form of Guarantee Agreement
4.7 Trust Agreement of SCE Trust I
4.8 Trust Agreement of SCE Trust II
4.9 Form of Amended and Restated Trust Agreement for each of SCE Trust I and
SCE Trust II
4.10 Form of Expense Agreement for each of SCE Trust I and SCE Trust II
(included in Exhibit 4.9)
5.1 Opinion of Kenneth S. Stewart as to legality of the securities being
registered
5.2 Opinion of Richards, Layton & Finger, P.A. relating to SCE Trust I
II-7
<PAGE>
5.3 Opinion of Richards, Layton & Finger, P.A. relating to SCE Trust II
12.1 Statement regarding Computation of Ratios of Earnings to Fixed Charges and
Preferred Stock Dividends
23.1 Consents of Stephen E. Pickett, Barbara E. Mathews and Kenneth S. Stewart
23.2 Consent of Gibson, Dunn & Crutcher LLP
23.3 Consents of Richards, Layton & Finger, P.A. (included in Exhibits 5.2 and
5.3)
23.4 Consent of Arthur Andersen LLP
24.1 Power of Attorney as to Southern California Edison Company
24.2 Certified Copy of Resolution of Board of Directors Authorizing Signature
25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939,
as amended, of The Bank of New York, as Trustee under the Indenture (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--SCE 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--SCE 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 Guarantee Trustee--SCE Trust I
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--SCE Trust II
27.1 Financial Data Schedule
------------------
+ To be filed by amendment or by incorporation by reference of a Current
Report on Form 8-K in connection with the offering of the securities.
* Incorporated by reference pursuant to Rule 411.
II-8
SOUTHERN CALIFORNIA EDISON COMPANY
UNDERWRITING AGREEMENT
DEBT SECURITIES
To the Representatives named
in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Dear Sirs:
Southern California Edison Company, a California corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters") for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "Securities"). The Securities will be issued under an
indenture, dated as of January 15, 1993 (the "Indenture"), between the Company
and Harris Trust and Savings Bank, as trustee (the "Trustee"). If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives," as used
herein, shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (the file number of which is set forth in Schedule I hereto), which
has become effective, for the registration under the Act of the Securities.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(x) under the Act and
complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424(b) under the Act
an amendment and supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the exhibits thereto,
as amended at the date of this Agreement, is hereinafter called the
"Registration Statement;" such prospectus in the form in which it appears
in the Registration Statement is hereinafter called the "Basic Prospectus;"
and such supplemented form of prospectus, in the form in which it shall be
filed with the Commission pursuant to Rule 424(b) (including the Basic
Prospectus as so amended and supplemented) is hereinafter called the "Final
Prospectus." Any preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424(b) is hereinafter called the
"Preliminary Final Prospectus." Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934 (the "Exchange Act")
on or before the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend," "amendment"
or "supplement" with respect to the Registration Statement, the Basic
1
<PAGE>
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424(b) under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final Prospectus
is filed with the Commission and at the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, and the Indenture will comply
in all material respects with the applicable requirements of the Act, the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the Exchange
Act and the respective rules thereunder and (ii) neither the Registration
Statement, as amended as of any such time, nor the Final Prospectus, as
amended or supplemented as of any such time, will contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; provided, however, that the Company makes no representations or
warranties as to (x) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (y) the information contained in
or omitted from the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in connection
with the preparation of the Registration Statement and the Final
Prospectus. For purposes of Section 1(b)(y), the Company acknowledges that
the table of Underwriters and principal amounts and the statements set
forth in the second, third, and fourth paragraphs under the heading
"Underwriting" in the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of certificates for the Securities shall
be made to the nominee of The Depository Trust Company in New York, New York, on
the date and time specified in Schedule I hereto, and payment for the Securities
shall be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of certificates for the Securities shall be made to
the nominee of The Depository Trust Company for the respective accounts of the
several Underwriters against payment of the purchase price thereof payable to
the Company in the funds specified in Schedule I hereto. Certificates for the
Securities shall be registered in such names and in such denominations as the
Representatives may request not less than one full business day in advance of
the Closing Date.
The Company agrees to have certificates representing the Securities
available for inspection, checking and packaging by the Representatives not
later than 3:00 PM, New York time, on the business day prior to the Closing
Date. All references herein to "certificates" shall mean one or more global
securities registered in the name of The Depository Trust Company or its
nominee.
2
<PAGE>
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment to the Registration Statement or
amendment or supplement (including the Final Prospectus) to the Basic
Prospectus unless the Company has furnished the Representatives a copy for
review prior to filing and will not file any such proposed amendment or
supplement to which the Representatives reasonably object. Subject to the
foregoing sentence, the Company will cause the Final Prospectus to be filed
with the Commission in accordance with the requirements of Rule 424(b). The
Company will promptly advise the Representatives (i) when the Final
Prospectus shall have been filed with the Commission pursuant to Rule
424(b), (ii) when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use every reasonable effort to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of any Preliminary Final Prospectus and the Prospectus and any
amendments thereof and supplements thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company agrees to use its best efforts to qualify the
Securities and to assist in the qualification of the Securities by or on
behalf of the Representatives or of any of one or more of the several
Underwriters for sale under the laws of such States as the Representatives
may designate, to maintain such qualifications in effect so long as
required for the distribution of the Securities and to assist in the
determination of the legality of the Securities for purchase by
institutional investors under the laws of such States as the
Representatives may designate; provided that the Company shall
3
<PAGE>
not be required to qualify as a foreign corporation in any State, or
to consent to service of process in any State other than with respect to
claims arising out of the offering or sale of the Securities.
(f) Until the business day following the Closing Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or announce the offering of, any debt securities (i)
covered by the Registration Statement or any other registration statement
filed under the Act or (ii) to purchasers for resale in reliance on the
exemption from registration under the Act provided by Rule 144A under the
Act.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
as of the date hereof, as of the date of the effectiveness of any amendment to
the Registration Statement filed prior to the Closing Date (including the filing
of any document incorporated by reference therein) and as of the Closing Date,
to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened; and
the Final Prospectus shall have been filed with the Commission in
accordance with the requirements of Rule 424(b).
(b) At or before the Closing Date, the Public Utilities Commission of
the State of California and any other regulatory authority whose consent or
approval shall be required for the issue and sale of the Securities by the
Company as herein provided shall have entered an order or orders
authorizing the issue and sale of the Securities by the Company on the
terms set forth in the Final Prospectus and herein, and at the Closing Date
such order or orders shall be in full force and effect.
(c) At the Closing Date, the Representatives shall have received the
written opinion, dated the Closing Date, of Stephen E. Pickett, Vice
President and General Counsel of the Company, or Barbara E. Mathews or
Kenneth S. Stewart, each an Assistant General Counsel of the Company, to
the effect that:
(i) The Company is a corporation validly organized and existing
in good standing under the laws of the State of California; the
Company has full corporate power to own its properties and conduct its
business as now being conducted; and the Company is duly qualified and
in good standing as a foreign corporation under the laws of the States
of Arizona, Nevada and New Mexico;
(ii) The Indenture has been duly authorized, executed and
delivered, is qualified under the Trust Indenture Act, and is a
legally valid and binding instrument, enforceable in accordance with
its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws or equitable
principles relating to or limiting creditors' rights generally;
(iii) The Securities have been duly authorized and, when
executed, authenticated, issued and delivered against payment therefor
in accordance with the Indenture and this Agreement, will constitute
legally valid and binding obligations of the Company, enforceable
4
<PAGE>
in accordance with their terms, subject, as to enforcement, to the
matters set forth in clause (ii) above;
(iv) The Registration Statement has become effective under the
Act, and, to the best of the knowledge of such counsel: no stop order
suspending the effectiveness of the Registration Statement or of any
part thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act; the
Registration Statement and the Final Prospectus, and each amendment or
supplement thereto, if any, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Act and the Trust Indenture Act, and the
applicable published rules and regulations of the Commission
thereunder, and no facts have come to such counsel's attention which
lead such counsel to believe that the Registration Statement or the
Final Prospectus, or any amendment or supplement thereto, as of their
respective effective or issue dates, contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Final Prospectus, at the Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading; the documents incorporated by reference in the Final
Prospectus, when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the applicable published rules and regulations of the
Commission thereunder; the descriptions in the Registration Statement
and the Final Prospectus of federal and state statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information required to be shown; and
such counsel does not know of any legal or governmental proceedings
required to be described in the Final Prospectus, which are not
described as required or of any contracts or documents of a character
required to be described in the Registration Statement or the Final
Prospectus or to be filed as exhibits to the Registration Statement
which are not described and filed as required; it being understood
that such counsel need not pass upon the financial statements and
other financial data contained in the Registration Statement or the
Final Prospectus;
(v) All legally required proceedings in connection with the
authorization of the Securities, the issue and sale of the Securities
by the Company pursuant hereto and the authorization of the
transactions related to such authorization, issue and sale, and all
such approvals, authorizations, consents or other orders of such
public boards of bodies, if any, as may be legally required with
respect to all or any of such matters, have been had or obtained,
except that the offer and sale of the Securities in certain
jurisdictions may be subject to the provisions of the securities or
Blue Sky laws of such jurisdictions;
(vi) The execution, delivery and performance of the Indenture and
this Agreement, the issuance and sale of the Securities, and
compliance with the terms and provisions hereof or thereof, will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, the charter or bylaws of the Company,
or, to such counsel's knowledge, any statute, rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or its subsidiaries or any of its
properties or any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company
or any such subsidiary is subject; and
5
<PAGE>
(vii) This Agreement has been duly authorized, executed and
delivered by the Company.
In rendering the opinion called for above, Mr. Pickett, Ms. Mathews, or Mr.
Stewart, as the case may be, may rely upon appropriate certificates of public
officials and officers or employees of the Company and the Trustee as to factual
matters, provided that such counsel shall state that such counsel believes that
both such counsel and the Representatives are justified in relying upon such
certificates and opinions. As to all matters governed by New York law, Mr.
Pickett, Ms. Mathews, or Mr. Stewart, as the case may be, will rely upon the
opinion of Gibson, Dunn & Crutcher LLP.
In rendering the opinion called for by clauses (ii) and (iii) above, Mr.
Pickett, Ms. Mathews, or Mr. Stewart, as the case may be, may state that such
counsel is expressing no opinion as to the availability of equitable remedies
and may advise that a California court may not strictly enforce certain
covenants of the Indenture or the Securities or allow acceleration of the due
date of the Securities if it concludes that such enforcement or acceleration
would be unreasonable under the then existing circumstances, although, in such
counsel's opinion, acceleration would be available if an event of default occurs
as a result of a material breach of a material covenant contained in the
Indenture or the Securities.
(d) The Representatives shall have received from Gibson, Dunn &
Crutcher LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Securities,
the Indenture, the Registration Statement, the Final Prospectus and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received certificates of the
Chairman of the Board, the President or any Vice President of the Company,
dated the Closing Date, to the effect that the signer of such certificate
has carefully examined the Registration Statement, the Final Prospectus and
this Agreement and that to the best of such signer's knowledge after
reasonable investigation:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no proceedings
for that purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus, there
has been no material adverse change in the financial condition or
results of operations of the Company, except as set forth in or
contemplated in the Final Prospectus or as described in such
certificate.
(f) On the date hereof, Arthur Andersen LLP shall have furnished to
the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives) dated as of the
date hereof, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants with respect to the
Company within the meaning of the Act and the
6
<PAGE>
Exchange Act and the respective applicable published rules and
regulations thereunder, and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company; carrying out certain
specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committee of the Company; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company as to transactions
and events subsequent to the date of the most recent audited financial
statements incorporated in the Registration Statement and the Final
Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply as to form in all material respects with
applicable accounting requirements and with the published rules
and regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on Form
10-Q of the Company under the Exchange Act; and said unaudited
financial statements are not fairly presented (except as
permitted by Form 10-Q) in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus; or
(2) with respect to the period subsequent to the date of the
most recent financial statements incorporated in the Registration
Statement and the Final Prospectus, there were any decreases, at
the date of the latest available unaudited financial statements
prepared by the Company, in the stockholders' equity of the
Company or any changes, at a specified date not more than five
business days prior to the date of the letter, in the long-term
debt or capital stock of the Company (other than changes
resulting from conversions of outstanding securities, drawdowns
of and earnings on funds held in trust in connection with
pollution control bonds and issuances of stock under existing
stock plans) as compared with the amounts shown on the most
recent consolidated balance sheet included or incorporated in the
Registration Statement and the Final Prospectus, or for the
period from the date of the most recent financial statements
incorporated in the Registration Statement and the Final
Prospectus to the date of the latest available unaudited
financial statements prepared by the Company there were any
decreases, as compared with the corresponding period in the
preceding year, in total operating revenues or net income, except
in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
and
7
<PAGE>
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the
Registration Statement, as amended, and the Final Prospectus, as
amended or supplemented, including the information included or
incorporated in Items 1, 2, 6 and 7 of the Company's annual report on
Form 10-K incorporated therein or in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included or
incorporated in any of the Company's quarterly reports on Form 10-Q
incorporated therein, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
In addition, at the Closing Date, Arthur Andersen LLP shall have
furnished to the Representatives a letter or letters, in form and substance
satisfactory to the Representatives, to the effect set forth in the introductory
paragraph to this paragraph (f), in subparagraphs (i) and (ii) (1) above and, to
the extent referring to information contained in Exchange Act reports
incorporated in the Registration Statement and the Final Prospectus, in
subparagraph (iii) above.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, there shall
not have been (i) any material adverse change described in the certificate
referred to in paragraph (e) of this Section 5, (ii) any change or decrease
specified in the letter or letters referred to in paragraph (f) of this
Section 5 or (iii) any change, or any development involving a prospective
change, in or affecting the business or properties of the Company and its
subsidiaries the effect of which, in any case referred to in clause (i),
(ii) or (iii) above, is, in the judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or the delivery of the Securities as contemplated by the
Registration Statement and the Final Prospectus.
(h) Subsequent to the execution of this Agreement, there shall not
have been any decrease in the ratings of any of the Company's debt
securities by Moody's Investor Services or Standard & Poor's Rating
Services.
(i) At or prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents
as the Representatives may reasonably request and such additional opinions
and letters as are provided for in Schedule I.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
6. Conditions to the Obligations of the Company. The obligations of the
Company to sell and deliver the Securities shall be subject to the following
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
8
<PAGE>
(b) At or before the Closing Date, the Public Utilities Commission of
the State of California and any other regulatory authority whose consent or
approval shall be required for the issue and sale of the Securities to the
Underwriters as herein provided shall have entered an order or orders
authorizing the issue and sale of the Securities on the terms set forth in
the Final Prospectus and herein, and at the Closing Date such order or
orders shall be in full force and effect.
(c) Concurrently with or prior to the delivery of the Securities to
the several Underwriters, the Company shall receive the full purchase price
herein specified for the Securities.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, this Agreement and all
obligations of the Company hereunder may be canceled at, or at any time prior
to, the Closing Date. Notice of such cancellation shall be given to the
Representatives in writing or by telephone or telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement and
will reimburse the Underwriters for, or pay on their behalf, any expenses
(including fees and disbursements of counsel) incurred by them in connection
with qualification of the Securities for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Representatives may designate and the printing of memoranda relating thereto,
for any fees charged by investment rating agencies for the rating of the
Securities, for any filing fee of the National Association of Securities
Dealers, Inc. relating to the Securities and for expenses incurred in
distributing the Prospectus and all supplements thereto, any preliminary
prospectuses and any preliminary prospectus supplements to each Underwriter.
[The Company also will reimburse the Underwriters for, or pay on their behalf,
fees and disbursements of counsel incurred by them in excess of $[_______] in
the aggregate in connection with the issuance, purchase and sale of the
Securities and matters related thereto; provided that fees and disbursements to
counsel incurred in connection with qualification of the Securities for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as the Representatives may designate and the printing of memoranda
relating thereto shall not be counted when determining whether such $[______]
amount has been reached.] If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Underwriters set
forth in Section 5 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent
9
<PAGE>
that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the preparation
thereof, and (ii) such indemnity with respect to the Basic Prospectus or any
Preliminary Final Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained in the
Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented). For purposes of
Section 8(a)(i), the Company acknowledges that the table of Underwriters and
principal amounts and the statements set forth in the second, third, and fourth
paragraphs under the heading "Underwriting" in the Final Prospectus constitute
the only information furnished in writing by or on behalf of the several
Underwriters. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that the table of Underwriters and principal amounts and the
statements set forth in the second, third, and fourth paragraphs under the
heading "Underwriting" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or
10
<PAGE>
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of paragraph (a) of this Section 8,
representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party;
and except that, if clause (i) or (iii) is applicable, such liability shall
be only in respect of the counsel referred to in such clause (i) or (iii).
Each indemnified party agrees promptly to notify each indemnifying party of
the commencement of any litigation or proceedings against it in connection
with the issue and sale of the Securities.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on grounds of policy or
otherwise, the Company on the one hand and the Underwriters on the other
hand shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and
one or more of the Underwriters may be subject (i) in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount bears to the sum of such discount
and the purchase price of the Securities specified in Schedule I hereto and
the Company is responsible for the balance or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect the relative benefit represented by
the percentage that the underwriting discount bears to the sum of such
discount and the purchase price for the Securities referred to in clause
(i) above, but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such loss, claim, damage or liability as well
as any other relevant equitable considerations. The relative fault of the
Company and the Underwriters shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d).
Notwithstanding anything in this subsection (d) to the contrary, (x) in no
case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount
applicable to the Securities purchased by such Underwriter hereunder and
(y) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Each Underwriter's
obligation to contribute as provided in this Section 8(d) is several in
proportion to its respective underwriting commitment hereunder and not
joint. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act shall
have the same rights to contribution as the Underwriter, and each person
who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights
11
<PAGE>
to contribution as the Company, subject in each case to clause (x)
of this paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to
so notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this paragraph (d). No party shall
be liable for contribution with respect to any action or claim settled
without its consent.
9. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in no event shall any non-defaulting
Underwriter be obligated to purchase additional Securities under this Section 9
in an amount exceeding 10% of the amount of the Securities set forth opposite
its name in Schedule II hereto. In the event that the amount of Securities which
all such non-defaulting Underwriters shall be obligated to purchase under the
preceding sentence shall be less than the amount of Securities which all such
defaulting Underwriters shall have failed to purchase, the non-defaulting
Underwriters shall have the right (but not the obligation) to purchase the
remaining Securities. If all such remaining Securities are not purchased by
non-defaulting Underwriters as above provided, the Company may, at its option,
(a) cancel this Agreement pursuant to the provisions of Section 6 hereof or (b)
elect to proceed with the sale and delivery hereunder of less than all of the
Securities to be purchased by the Underwriters. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Final Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any non-defaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Common Stock of Edison International, a California corporation, shall
have been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter, or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12
<PAGE>
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 2244 Walnut Grove Avenue, Rosemead, California 91770,
attention of the Treasurer.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
15. Counsel for the Underwriters. As discussed in the Registration
Statement, from time to time Gibson, Dunn & Crutcher LLP performs legal services
for the Company and its subsidiaries relating to special matters. The Company
and each Underwriter hereby consent to Gibson, Dunn & Crutcher LLP acting as
counsel for the Underwriters in connection with the offer and sale of the
Securities. The Company and each Underwriter hereby agree that if any dispute
should arise between the Company and any Underwriter with respect to or arising
out of this Agreement or the offer and sale of the Securities, Gibson, Dunn &
Crutcher LLP would not represent either the Company or the Underwriters in
connection with such dispute.
13
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Company and the
several Underwriters.
Very truly yours,
SOUTHERN CALIFORNIA EDISON COMPANY
BY:
------------------
Mary C. Simpson
Assistant Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
BY:
BY:__________________________
Name: ___________________
Title: _____________________
For themselves and the other several
Underwriters, if any, named in Schedule II
to the foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representatives and Address:
Title, Purchase Price and Description of Securities:
Title: ____% Notes, Due ____
Principal Amount: $___________
Purchase Price: _______% of the principal amount of the Securities plus
accrued interest from ___________ to _______________.
Maturity:
Interest: ____% per annum, from _________________, payable
[semiannually] on _______ 15 and _______ 15, commencing ____________,
to the holders of record on the preceding _________ 1 and __________ 1,
respectively.
Sinking Fund Provisions:
Optional Redemption:
Closing Date and Time:
Method of Payment:
Modification of items to be covered by the letter from Arthur Andersen LLP
delivered pursuant to Section 5(f):
Location of Closing:
2244 Walnut Grove Avenue
Rosemead, California 91770
or as agreed upon by the Representatives and the Company.
<PAGE>
SCHEDULE II
Principal
Amount
of Securities
to be
Underwriters Purchased
_______________________.......................... $____________
_______________________.......................... $____________
_______________________.......................... $____________
--------------
Total..........................................., $____________
=============
CERTIFICATE OF TRUST
OF
SCE TRUST I
This Certificate or Trust of SCE Trust I (the "Trust"), dated August 22,
2000, is being duly executed and filed by the undersigned, as trustees of the
Trust, with the Secretary of State of the State of Delaware to form a business
trust under the Delaware Business Trust Act (12 Del.C. ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is SCE 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 USA, National Association, 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 USA,
NATIONAL ASSOCIATION, as trustee
By: /s/ Denis Kelly
-------------------------------
Denis Kelly
Assistant Vice President
THE CHASE MANHATTAN BANK,
as trustee
By: /s/ Alfia Monastra
------------------------------
Alfia Monastra
Vice President
CERTIFICATE OF TRUST
OF
SCE TRUST II
This Certificate or Trust of SCE Trust I (the "Trust"), dated August 22,
2000, is being duly executed and filed by the undersigned, as trustees of the
Trust, with the Secretary of State of the State of Delaware to form a business
trust under the Delaware Business Trust Act (12 Del.C. ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is SCE 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 USA, National Association, 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 USA,
NATIONAL ASSOCIATION, as trustee
By: /s/ Denis Kelly
--------------------------------
Denis Kelly
Assistant Vice President
THE CHASE MANHATTAN BANK,
as trustee
By: /s/ Alfia Monastra
--------------------------------
Alfia Monastra
Vice President
--------------------------------------------
SOUTHERN CALIFORNIA EDISON COMPANY
TO
THE CHASE MANHATTAN BANK
Trustee
--------------------------------------------
SUBORDINATED INDENTURE
Dated as of ____________, 20__
--------------------------------------------
<PAGE>
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
--------------- -----------------
Section 310(a)(1)........................................... 609
(a)(2)....................................... 609
(a)(3)....................................... Not Applicable
(a)(4)....................................... Not Applicable
(b).......................................... 608
610
Section 311(a).............................................. 613
(b).......................................... 613
Section 312(a).............................................. 701
702
(b).......................................... 702
(c).......................................... 702
Section 313(a).............................................. 703
(b).......................................... 703
(c).......................................... 703
(d).......................................... 703
Section 314(a).............................................. 704
(a)(4)....................................... 101
............................................. 1005
(b).......................................... Not Applicable
(c)(1)....................................... 102
(c)(2)....................................... 102
(c)(3)....................................... Not Applicable
(d).......................................... Not Applicable
(e).......................................... 102
Section 315(a).............................................. 601
(b).......................................... 602
(c).......................................... 601
(d).......................................... 601
(e).......................................... 514
Section 316(a).............................................. 101
(a)(1)(A).................................... 502
............................................. 512
(a)(1)(B).................................... 513
(a)(2)....................................... Not Applicable
(b).......................................... 508
(c).......................................... 104
Section 317(a)(1)........................................... 503
(a)(2)....................................... 504
(b).......................................... 1003
Section 318(a).............................................. 107
-------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
Parties....................................................................1
Recitals of the Corporation................................................1
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION....................................................1
Section 101. Definitions................................................1
Section 102. Compliance Certificates and Opinions.......................7
Section 103. Form of Documents Delivered to Trustee.....................7
Section 104. Acts of Holders; Record Dates..............................8
Section 105. Notices, Etc., to Trustee and Corporation.................10
Section 106. Notice to Holders; Waiver.................................11
Section 107. Conflict with Trust Indenture Act.........................11
Section 108. Effect of Headings and Table of Contents..................12
Section 109. Successors and Assigns....................................12
Section 110. Separability Clause.......................................12
Section 111. Benefits of Indenture.....................................12
Section 112. Governing Law.............................................12
Section 113. Legal Holidays............................................12
Section 114. No Security Interest Created..............................12
ARTICLE II. SECURITY FORMS...............................................13
Section 201. Forms Generally...........................................13
Section 202. Form of Face of Security..................................13
Section 203. Form of Reverse of Security...............................15
Section 204. Form of Legend for Global Securities......................19
Section 205. Form of Trustee's Certificate of Authentication...........19
ARTICLE III. THE SECURITIES..............................................20
Section 301. Amount Unlimited; Issuable in Series......................20
Section 302. Denominations.............................................23
Section 303. Execution, Authentication, Delivery and Dating............23
Section 304. Temporary Securities......................................25
Section 305. Registration, Registration of Transfer and Exchange.......25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..........27
Section 307. Payment of Interest; Interest Rights Preserved............28
Section 308. Persons Deemed Owners.....................................29
Section 309. Cancellation..............................................29
Section 310. Computation of Interest...................................30
Section 311. CUSIP Numbers.............................................30
<PAGE>
ARTICLE IV. SATISFACTION AND DISCHARGE...................................30
Section 401. Satisfaction and Discharge of Indenture...................30
Section 402. Application of Trust Money................................31
ARTICLE V. REMEDIES ....................................................32
Section 501. Events of Default.........................................32
Section 502. Acceleration of Maturity; Rescission and Annulment........33
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................34
Section 504. Trustee May File Proofs of Claim..........................35
Section 505. Trustee May Enforce Claims Without Possession of
Securities................................................35
Section 506. Application of Money Collected............................36
Section 507. Limitation on Suits.......................................36
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest......................................37
Section 509. Restoration of Rights and Remedies........................37
Section 510. Rights and Remedies Cumulative............................37
Section 511. Delay or Omission Not Waiver..............................37
Section 512. Control By Holders........................................38
Section 513. Waiver of Past Defaults...................................38
Section 514. Undertaking for Costs.....................................39
Section 515. Waiver of Stay or Extension Laws..........................39
ARTICLE VI. THE TRUSTEE..................................................39
Section 601. Certain Duties and Responsibilities.......................39
Section 602. Notice of Defaults........................................39
Section 603. Certain Rights of Trustee.................................40
Section 604. Not Responsible for Recitals or Issuance of Securities....41
Section 605. May Hold Securities.......................................41
Section 606. Money Held in Trust.......................................41
Section 607. Compensation and Reimbursement............................41
Section 608. Conflicting Interests.....................................42
Section 609. Corporate Trustee Required; Eligibility...................42
Section 610. Resignation and Removal; Appointment of Successor.........43
Section 611. Acceptance of Appointment by Successor....................44
Section 612. Merger, Conversion, Consolidation or Succession
to Business...............................................45
Section 613. Preferential Collection of Claims Against Corporation.....45
Section 614. Appointment of Authenticating Agent.......................46
Section 615. Trustee's Application for Instructions from
the Corporation...........................................47
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ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION.......47
Section 701. Corporation to Furnish Trustee Names and
Addresses of Holders......................................47
Section 702. Preservation of Information; Communications to Holders....48
Section 703. Reports by Trustee........................................48
Section 704. Reports by Corporation....................................48
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER..............49
Section 801. Corporation May Consolidate, Etc., Only on
Certain Terms.............................................49
Section 802. Successor Substituted.....................................50
ARTICLE IX. SUPPLEMENTAL INDENTURES......................................50
Section 901. Supplemental Indentures Without Consent of Holders........50
Section 902. Supplemental Indentures With Consent of Holders...........51
Section 903. Execution of Supplemental Indentures......................52
Section 904. Effect of Supplemental Indentures.........................53
Section 905. Conformity with Trust Indenture Act.......................53
Section 906. Reference in Securities to Supplemental Indentures........53
Section 907. Subordination Unimpaired..................................53
ARTICLE X. COVENANTS ....................................................53
Section 1001. Payment of Principal, Premium and Interest...............53
Section 1002. Maintenance of Office or Agency..........................53
Section 1003. Money for Securities Payments to Be Held in Trust........54
Section 1004. Corporate Existence......................................55
Section 1005. Statement by Officers as to Default......................55
Section 1006. Waiver of Certain Covenants..............................55
Section 1007. Calculation of Original Issue Discount...................56
ARTICLE XI. REDEMPTION OF SECURITIES.....................................56
Section 1101. Applicability of Article.................................56
Section 1102. Election to Redeem; Notice to Trustee....................56
Section 1103. Selection by Trustee of Securities to Be Redeemed........56
Section 1104. Notice of Redemption.....................................57
Section 1105. Deposit of Redemption Price..............................58
Section 1106. Securities Payable on Redemption Date....................59
Section 1107. Securities Redeemed in Part..............................59
ARTICLE XII. SINKING FUNDS...............................................59
Section 1201. Applicability of Article.................................59
Section 1202. Satisfaction of Sinking Fund Payments with
Securities...............................................60
Section 1203. Redemption of Securities for Sinking Fund................60
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ARTICLE XIII. DEFEASANCE AND COVENANT DEFEASANCE.........................60
Section 1301. Applicability of Article.................................60
Section 1302. Defeasance and Discharge.................................61
Section 1303. Covenant Defeasance......................................61
Section 1304. Conditions to Defeasance or Covenant Defeasance..........61
Section 1305. Deposited Money and Government Obligations to Be
Held in Trust; Miscellaneous Provisions..................63
ARTICLE XIV. SUBORDINATION...............................................63
Section 1401. Securities Subordinated to Senior Indebtedness...........63
Section 1402. Disputes with Holders of Certain Senior Indebtedness.....65
Section 1403. Subrogation..............................................66
Section 1404. Obligation of Corporation Unconditional..................66
Section 1405. Payments on Securities Permitted.........................67
Section 1406. Effectuation of Subordination by Trustee.................67
Section 1407. Knowledge of Trustee.....................................67
Section 1408. Trustee May Hold Senior Indebtedness.....................68
Section 1409. Rights of Holders of Senior Indebtedness Not Impaired....68
Section 1410. Trust Moneys Not Subordinated............................68
Section 1411. Article Applicable to Paying Agents......................68
Section 1412. Trustee; Compensation Not Prejudiced.....................68
ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.......................................69
Section 1501. Indenture and Securities Solely Corporate Obligations....69
Testimonium...............................................................68
Signatures and Seals......................................................68
<PAGE>
INDENTURE, dated as of ___________, 20__, between Southern California
Edison Company, 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
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(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Corporation
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Corporation to have been duly adopted by the
Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means a day
other than (i) a Saturday or a Sunday, (ii) a day on which banking institutions
in that Place of Payment or Los Angeles, California, are authorized or obligated
by law or executive order to remain closed or (iii) a day on which the Corporate
Trust Office of the Trustee is closed for business.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Corporation" means the Person named as the "Corporation" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Corporation by any one of its Chairman of the Board,
its President, its Chief Financial Officer, any Vice President, its Treasurer or
any Assistant Treasurer, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 450 W. 33rd Street, 15th Floor,
New York, NY 10001, or at any other time at such address as the Trustee may
designate from time to time.
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"corporation" means a corporation, association, company, joint-stock
company or business trust. -----------
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series which is issued to a Depositary or a nominee thereof
for such series in accordance with Section 301(17).
"Government Obligation" has the meaning specified in Section 1304.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or
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herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"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
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the amount of the principal thereof which would be due and payable as of
such date upon acceleration of the Maturity thereof to such date pursuant to
Section 502, (B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount of such
Security which shall be deemed to be Outstanding shall be the amount as
specified or determined as contemplated by Section 301, (C) the principal amount
of a Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by Section
301, of the principal amount of such Security (or, in the case of a Security
described in Clause (A) or (B) above, of the amount determined as provided in
such Clause), and (D) Securities owned by the Corporation or any other obligor
upon the Securities or any Affiliate of the Corporation or of such other
obligor, whether of record or beneficially, shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Corporation or any other obligor upon the Securities or any Affiliate
of the Corporation or of such other obligor.
"Paying Agent" means any Person authorized by the Corporation to pay the
principal of or any premium or interest on any Securities on behalf of the
Corporation.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest or formula for determining the rate or rates of
interest thereon, if any, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Corporation upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, limited liability
company or corporation, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
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"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means any
vice president, assistant vice president, managing director, assistant
secretary, assistant treasurer, senior trust officer, assistant trust officer,
trust officer, or other officer associated with the corporate trust department
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of such person's knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means with respect to any series of Securities,
unless otherwise specified pursuant to Section 301 with respect thereto, the
principal of, and premium, if any, and interest on and any other payment in
respect of indebtedness due pursuant to any of the following, whether
outstanding at the date of execution of this Indenture or thereafter incurred,
created or assumed: (a) all indebtedness of the Corporation evidenced by notes,
debentures, bonds or other securities sold by the Corporation for money or other
obligations for money borrowed, (b) all indebtedness of others of the kinds
described in the preceding clause (a) assumed by or guaranteed in any manner by
the Corporation or in effect guaranteed by the Corporation through an agreement
to purchase, contingent or otherwise, and (c) all renewals, extensions or
refundings of indebtedness of the kinds described in either of the preceding
clauses (a) and (b), unless, in the case of any particular indebtedness,
renewal, extension or refunding, the instrument creating or evidencing the same
or the assumption or guarantee of the same by its terms provides that such
indebtedness, renewal, extension or refunding is not superior in right of
payment to or is pari passu with such Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the date on which the principal of such Security or such
installment of principal or interest is due and payable, in the
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case of such principal, as such date may be advanced or extended as
provided pursuant to the terms of such Security and this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" shall mean, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Vice President," when used with respect to the Corporation or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Corporation to the Trustee to take
any action under any provision of this Indenture, the Corporation shall furnish
to the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
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 towhether, in the opinion of each such individual,
such condition or covenant has been complied with.
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Section 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such Officer's Certificate or opinion is
based are erroneous. Any such certificate or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever, subsequent to the receipt by the Trustee of any Board Resolution,
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
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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, 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
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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 any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Corporation's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be sent to the
Corporation in writing and to each Holder of Securities of the relevant series
in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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Section 105. Notices, Etc., to Trustee and Corporation.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Corporation shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing (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 any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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Section 108.Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109.Successors and Assigns.
All covenants and agreements in this Indenture by the Corporation shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Unless otherwise specified pursuant to Section 301 with respect to the
Securities of any series, nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of California, without regard to conflicts
of laws principles thereof, except that the rights, duties, indemnities and
immunities of the Trustee shall be governed by the laws of the State of New
York.
Section 113. Legal Holidays.
Unless otherwise specified pursuant to Section 301 with respect to the
Securities of any series, in any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made on such date, but may be made on the next
succeeding Business Day, unless that Business Day is in a different calendar
year, in which case the payment will be made on the preceding Business Day, in
each case, with the same force and effect as if made on the Interest Payment
Date or Redemption Date, or at the Stated Maturity.
Section 114. No Security Interest Created.
Nothing in this Indenture or in the Securities expressed or implied, shall
be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or
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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.
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.]
SOUTHERN CALIFORNIA EDISON COMPANY
---------------------
$______________
No. CUSIP No._____________
--------------
Southern California Edison Company, 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
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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 suchinterest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. Any such interest on overdue
principal or premium which is not paid on 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].
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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: SOUTHERN CALIFORNIA EDISON COMPANY
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 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,
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Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ____________ in
any year commencing with the year ______ and ending with the year _____ through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert - on or after _____________], as a whole or in part, at the
election of the Corporation, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12- month
period beginning ________ of the years indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- -------------------- ----------------------
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Corporation may
not, prior to _________, redeem any Securities of this series as contemplated by
[if applicable, insert - Clause (2) of] the preceding paragraph as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Corporation
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
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[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.]
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
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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.
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.
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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.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
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 shorten or extend the date on which the principal of
any Securities of the series is payable and the conditions to any such
change;
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<PAGE>
(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
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is to be made and the amount so payable (or the manner in which such
amount shall be determined);
(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(16) if either or both of Sections 1302 and 1303 do not apply to any
Securities of the series;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositary or Depositaries for such
Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in
Section 204 and any circumstances in addition to or in lieu of those set
forth in Clause (2) of the last paragraph of Section 305 in which any such
Global Security may be exchanged in whole or in part for Securities
registered, and any transfer of such Global Security in whole or in part
may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(18) any addition, modification or deletion of any Events of Default
or covenants provided with respect to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant
to Section 502;
(19) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(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.
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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 electronic
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instructions from the Corporation or its duly authorized agents,
promptly confirmed in writing) acceptable to the Trustee as may be specified by
or pursuant to a Company Order delivered to the Trustee prior to the time of the
first authentication of Securities of such series. If the form or terms of the
Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been, or in the case of
Securities of a series offered in a Periodic Offering, will be, established
by or pursuant to Board Resolution as permitted by Section 301, that such
terms have been, or in the case of Securities of a series offered in a
Periodic Offering, will be, established in conformity with the provisions
of this Indenture, subject, in the case of Securities of a series offered
in a Periodic Offering, to any conditions specified in such Opinion of
Counsel; and
(3) that such Securities, when issued and executed by the Corporation
and when authenticated and delivered by the Trustee in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Corporation
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
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.
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Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the
Corporation, and the Corporation shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Corporation will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Corporation in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Corporation shall execute and
the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any 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,
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and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Corporation shall execute, and the Trustee shall authenticate
and deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the legal, valid and binding obligations of the Corporation,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Corporation or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Corporation and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1106 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed, the Corporation shall not be required (A) to issue, register the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption and ending at the close of business on
the day of such 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
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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 written notice to
the Corporation or the Trustee that such Security has been acquired by a bona
fide purchaser, the Corporation shall execute and the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security, a new
Security of the same series and of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Corporation in its discretion may,
instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Corporation
may require the payment of a sum sufficient to cover any tax, 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 shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Corporation of such
Special Record Date and, in the name and at the expense of the Corporation,
shall cause notice of
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the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be given to each Holder of Securities of such series in
the manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Corporation may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange, if any, on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Corporation to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Corporation, the Trustee nor any agent of the Corporation or the Trustee shall
be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Corporation may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Corporation may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Corporation has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of in its customary manner or
as directed by a Company Order; provided, however, that the Trustee shall not be
required to destroy such canceled Securities.
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Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Corporation in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
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
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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.
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.
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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 principal amount of
Securities of such series, as the case may be, shall be deemed to have
agreed to an extension of such period if corrective action is initiated by
the Corporation within such period and is being diligently pursued; or
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(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Corporation in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Corporation a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Corporation under any applicable
federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Corporation or of any substantial part of its property, or ordering the
winding-up or liquidation of its affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and
in effect for a period of 90 consecutive days; or
(6) the commencement by the Corporation of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Corporation in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Corporation or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
authorization of any such action by the Board of Directors; or
(7) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Corporation (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal
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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 sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel.
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If the Corporation fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Corporation or any other obligor upon such Securities and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Corporation or any other obligor upon such Securities,
wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Corporation (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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
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and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
607;
Second: Subject to Article XIV, to the payment of the amounts then due
and unpaid for principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal and any
premium and interest, respectively; and
Third: To the payment of the balance, if any, to the Corporation.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of all affected series, considered as one class, or,
in the case of an Event of Default of the character specified above in
Section 501(1), (2) or (3), that series, shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(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
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Event of Default of the character specified above in Section 501(1), (2)
and (3), that series,
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Corporation, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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.
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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.
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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 indemnity satisfactory to
it 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
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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
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, conclusively rely upon an Officer's Certificate and such
Officer's Certificate shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof;
(4) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel with respect to legal
matters shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document;
(7) the Trustee shall not be liable for the observance as a Business
Day of a day on which banking institutions in Los Angeles, California (but
not the banking
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institutions in the Place of Payment), are authorized or
obligated by law or executive order to remain closed if a Responsible
officer of the Trustee does not have actual knowledge that banking
institutions in Los Angeles, California, are authorized or obligated by law
or executive order to remain closed on such day; and
(8) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Corporation, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Corporation of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Corporation.
Section 607. Compensation and Reimbursement.
The Corporation agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed to in writing between the Corporation and the Trustee for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable
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compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad faith; and
(3) to indemnify and defend the Trustee and its officers, directors,
employees, representatives and agents for, and to hold it harmless against,
any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee) of whatever kind or
nature regardless of their merit incurred without negligence, willful
misconduct or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
whether asserted by the Corporation, a Holder or any other Person and all
reasonable attorneys fees, consultants fees, expenses and court costs or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all property and
funds held by it hereunder for any amount owing it or any predecessor Trustee
pursuant to this Section 607, except with respect to funds held in trust for the
benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the earlier resignation or removal of the Trustee.
Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and surplus
of at least $50,000,000. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital
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and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Corporation. If the
instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition, at the expense of the Corporation, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Corporation. Upon such removal, the Corporation may petition, at 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
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series, the Corporation, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Corporation and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Corporation. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Corporation or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
The Corporation shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Corporation and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Corporation or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the 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
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contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Corporation shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Corporation.
If and when the Trustee shall be or become a creditor of the
Corporation (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Corporation (or any such other obligor).
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Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents acceptable to the
Corporation with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Corporation and shall at all times be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital
and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided that such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Corporation. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Corporation and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Corporation agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: The Chase Manhattan Bank,
As Trustee
By: _________________________
As Authenticating Agent
By: _________________________
Authorized Signatory
Section 615. Trustee's Application for Instructions from the Corporation.
Any application by the Trustee for written instructions from the
Corporation may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable to the Corporation for any action
taken by, or omission of, the Trustee in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than three Business Days after the date any officer of the
Corporation actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 701. Corporation to Furnish Trustee Names and Addresses of Holders.
The Corporation will furnish or cause to be furnished to the Trustee
(1) 15 days after each Regular Record Date, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of such Regular Record Date, and
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.
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Corporation of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Corporation and the Trustee that neither the Corporation nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture, deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of such Section 313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Corporation. The
Corporation will promptly notify the Trustee when any Securities are listed on
any stock exchange or 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
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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:
(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.
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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 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
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the benefit of such series) or to surrender any right or power herein
conferred upon the Corporation; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to facilitate the issuance of
Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
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,
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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 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
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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.
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
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where notices and demands to or upon the Corporation in respect of the
Securities of that series and this Indenture may be served. The Corporation will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Corporation shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Corporation hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Corporation may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Corporation of its obligation to maintain an
office or agency in each Place of Payment for Securities of any series for such
purposes. The Corporation will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Corporation shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Corporation will promptly notify the Trustee of its action or
failure so to act.
The Corporation will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) 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.
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The Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust hereunder by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Corporation or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Corporation, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Corporation on Company Request, or (if then held by the Corporation)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Corporation for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Corporation as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Corporation cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Corporation.
Section 1004. Corporate Existence.
Subject to Article Eight, the Corporation will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises.
Section 1005. Statement by Officers as to Default.
The Corporation will deliver to the Trustee, on or before October 15 of
each calendar year or on or before such other day in each calendar year as the
Corporation and the Trustee may from time to time agree upon, an 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
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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 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
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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.
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;
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(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 written 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.
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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.
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
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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.
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.
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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 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
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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).
(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.
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Section 1305. Deposited Money and Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee pursuant to Section 1304 in respect of any Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
such Paying Agent (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 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
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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, 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
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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 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
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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 or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
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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 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.
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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.
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ARTICLE XV.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1501. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or any premium or interest
on any Security, or for any claim based thereon or otherwise in respect thereof,
and no recourse under or upon any obligation, covenant or agreement of the
Corporation in this Indenture or in any supplemental indenture, or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Corporation or of any successor
corporation, either directly or through the Corporation or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities.
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
SOUTHERN CALIFORNIA EDISON
COMPANY
By ____________________
Mary C. Simpson
Assistant Treasurer
Attest:
________________________
THE CHASE MANHATTAN BANK,
as Trustee
By ________________________
Authorized Signatory
Attest:
_________________________
GUARANTEE AGREEMENT
Between
SOUTHERN CALIFORNIA EDISON COMPANY
(as Guarantor)
and
THE CHASE MANHATTAN BANK
(as Trustee)
dated as of
______________, 20__
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
------------------- -------------------
310(a)......................................................4.1(a)
310(b.......................................................4.1(c), 2.8
310(c)......................................................Inapplicable
311(a)......................................................2.2(b)
311(b)......................................................2.2(b)
311(c)......................................................Inapplicable
312(a)......................................................2.2(a)
312(b)......................................................2.2(b)
313.........................................................2.3
314(a)......................................................2.4
314(b)......................................................Inapplicable
314(c)......................................................2.5
314(d)......................................................Inapplicable
314(e)......................................................1.1, 2.5, 3.2
314(f)......................................................2.1, 3.2
315(a)......................................................3.1(d)
315(b)......................................................2.7
315(c)......................................................3.1
315(d)......................................................3.1(d)
316(a)......................................................1.1, 2.6, 5.4
316(b)......................................................5.3
316(c)......................................................8.2
317(a)......................................................Inapplicable
317(b)......................................................Inapplicable
318(a)......................................................2.1(b)
318(b)......................................................2.1
318(c)......................................................2.1(a)
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 Definitions..............................................2
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.........................4
Section 2.2 List of Holders; Preferential Claims.....................4
Section 2.3 Reports by the Guarantee Trustee.........................4
Section 2.4 Periodic Reports to the Guarantee Trustee................4
Section 2.5 Evidence of Compliance with Conditions Precedent.........5
Section 2.6 Events of Default; Waiver................................5
Section 2.7 Event of Default; Notice.................................5
Section 2.8 Conflicting Interests....................................5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee...............5
Section 3.2 Certain Rights of Guarantee Trustee......................7
Section 3.3 Indemnity................................................8
ARTICLE IV
GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee: Eligibility...........................9
Section 4.2 Appointment, Removal and Resignation of the
Guarantee Trustee........................................9
ARTICLE V
GUARANTEE
Section 5.1 Guarantee...............................................10
Section 5.2 Waiver of Notice and Demand.............................10
Section 5.3 Obligations Not Affected................................10
Section 5.4 Rights of Holders.......................................11
<PAGE>
Section 5.5 Guarantee of Payment....................................11
Section 5.6 Subrogation.............................................11
Section 5.7 Independent Obligations.................................12
ARTICLE VI
COVENANTS AND SUBORDINATION
Section 6.1 Subordination........................................12
Section 6.2 Pari Passu Guarantees................................12
ARTICLE VII
TERMINATION
Section 7.1 Termination..........................................12
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Successors and Assigns...............................12
Section 8.2 Amendments...........................................13
Section 8.3 Notices..............................................13
Section 8.4 Benefit..............................................14
Section 8.5 Interpretation.......................................14
Section 8.6 Governing Law........................................15
<PAGE>
GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of _____________, 20__, entered into between
SOUTHERN CALIFORNIA EDISON COMPANY, 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 SCE
Trust [__], a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
________________, 20__ (the "Trust Agreement"), among Southern California Edison
Company, 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
up to $[___________] aggregate Liquidation Amount (as defined in the Trust
Agreement) of its [____]% [___________] Preferred Securities, Series [__]
(Liquidation Amount $[__] 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.
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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 $[__] 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,
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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 [_______], 20[__],
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
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.
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"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, 2001, the Guarantee Trustee
shall provide to the Holders such reports as are required by Section 313 of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Guarantee Trustee. The Guarantor shall
provide to the Guarantee Trustee, 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.
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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 a
Responsible Officer of 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
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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 conclusively proved by a court of competent
jurisdiction that the Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
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(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
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.
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(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
agents, attorneys, custodians or nominees and the Guarantee Trustee shall
not be responsible for any misconduct or negligence on the part of any such
agent, attorney, custodian or nominee 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
fully protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
Section 3.3 Indemnity. The Guarantor agrees to indemnify the Guarantee
Trustee and its officers, directors, employees, representatives and agents for,
and to hold it and such persons harmless against, any loss, liability or expense
of whatever kind or nature regardless of their merit, demanded, asserted or
claimed against the Guarantee Trustee and incurred without negligence or bad
faith on the part of the Guarantee Trustee, arising out of or in connection with
the acceptance or administration of this Guarantee Agreement, including without
limitation the costs and expenses of defending itself (including reasonable
attorneys' and consultants' fees and expenses)
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against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Guarantee Trustee will
not claim or exact any lien or charge on any Guarantee Payments as a result of
any amount due to it under this Guarantee Agreement. The indemnification
provided hereunder shall survive the termination of this Guarantee Agreement and
the resignation or removal of the Guarantee Trustee.
Article IV
GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee: Eligibility. (a) There shall at all times be
a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or removed
without cause at any time by the Guarantor upon written notice.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor
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Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Guarantee Trustee and delivered
to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 30 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
Article V
GUARANTEE
Section 5.1 Guarantee. The Guarantor irrevocably and unconditionally agrees
to pay in full to the Holders the Guarantee Payments (without duplication of
amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
Section 5.2 Waiver of Notice and Demand. The Guarantor hereby waives notice
of acceptance of this Guarantee Agreement and of any liability to which it
applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
Section 5.3 Obligations Not Affected. The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Notes as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
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(c) any failure, omission, delay or lack of diligence on the part of the
Holders or the Guarantee Trustee to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the terms of the
Preferred Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders. The Guarantor expressly acknowledges that:
(i) this Guarantee Agreement will be deposited with the Guarantee Trustee to be
held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to
enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of
a Majority in Liquidation Amount of the Preferred Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer or any other Person.
Section 5.5 Guarantee of Payment. This Guarantee Agreement creates a
guarantee of payment and not of performance or collection. This Guarantee
Agreement will not be discharged except by payment of the Guarantee Payments in
full (without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Notes to Holders as provided in the Trust Agreement.
Section 5.6 Subrogation. The Guarantor shall be subrogated to all (if any)
rights of the Holders against the Issuer, in respect of any amounts paid to the
Holders by the Guarantor under this Guarantee Agreement, and shall have the
right to waive payment by the Issuer pursuant to Section 5.1; provided, however,
that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any rights which it may
acquire against the Issuer by way
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 Southern California Edison Company 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.
12
<PAGE>
Article VIII
MISCELLANEOUS
Section 8.1 Successors and Assigns. All guarantees and agreements contained
in this Guarantee Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to the benefit of
the Holders of the Preferred Securities from time to time outstanding. Except in
connection with a consolidation, merger or sale involving the Guarantor that is
permitted under Article VIII of the Indenture and pursuant to which the
successor or assignee agrees in writing to perform the Guarantor's obligations
hereunder, the Guarantor shall not assign its obligations hereunder.
Section 8.2 Amendments. Except with respect to any changes which do not
adversely affect the rights of the Holders in any material respect (in which
case no consent of the Holders will be required), this Guarantee Agreement may
only be amended in writing by the Guarantor and Trustee 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:
Southern California Edison Company
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:
SCE Trust [__]
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-___-____
Attention: Corporate Governance
13
<PAGE>
with a copy to:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile No.: 212-946-8177/8178
Attention: Capital Markets Fiduciary Services
(c) if given to the Guarantee Trustee, at the Guarantee Trustee's address
set forth below or such other address as the Guarantee Trustee may give notice
to the Holders:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile No.: 212-946-8177/8178
Attention: Capital Markets Fiduciary Services
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 8.4 Benefit. This Guarantee Agreement is solely for the benefit of
the Holders and is not separately transferable from the Preferred Securities.
Section 8.5 Interpretation. In this Guarantee Agreement, unless the context
otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in
the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are
to Articles and Sections of this Guarantee Agreement unless otherwise specified;
14
<PAGE>
(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, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, 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.
SOUTHERN CALIFORNIA EDISON COMPANY
By:_______________________________
Name:
Title:
THE CHASE MANHATTAN BANK
as Guarantee Trustee
By:_______________________________
Name:
Title:
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of August 22, 2000 (this "Trust Agreement"),
is among (i) SOUTHERN CALIFORNIA EDISON COMPANY, a California corporation, as
Depositor (the "Depositor"), (ii) CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association, 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 "SCE 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.
ss. 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 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,
1
<PAGE>
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 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 an Underwriting Agreement relating to the
Preferred Securities, among the Trust, the Depositor, and the several
Underwriters named therein. 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, each Exchange and any 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 ss. 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.
SOUTHERN CALIFORNIA EDISON COMPANY,
as Depositor
By: MARY C. SIMPSON
Name: Mary C. Simpson
Title:Assistant Treasurer
THE CHASE MANHATTAN BANK, as
Trustee
By: ALFIA MONASTRA
Name: Alfia Monastra
Title: Vice President
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Trustee
By: DENIS KELLY
Name: Denis Kelly
Title: Assistant Vice President
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of August 22, 2000 (this "Trust Agreement"),
is among (i) SOUTHERN CALIFORNIA EDISON COMPANY, a California corporation, as
Depositor (the "Depositor"), (ii) CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, a national banking association, 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 "SCE 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.
ss. 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 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,
<PAGE>
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 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 an Underwriting Agreement relating to the
Preferred Securities, among the Trust, the Depositor, and the several
Underwriters named therein. 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, each Exchange and any 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 ss. 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.
<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.
SOUTHERN CALIFORNIA EDISON COMPANY,
as Depositor
By: MARY C. SIMPSON
Name: Mary C. Simpson
Title: Assistant Treasurer
THE CHASE MANHATTAN BANK, as
Trustee
By: ALFIA MONASTRA
Name: Alfia Monastra
Title: Vice President
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, as Trustee
By: DENIS KELLY
Name: Denis Kelly
Title: Assistant Vice President
AMENDED AND RESTATED
TRUST AGREEMENT
among
SOUTHERN CALIFORNIA EDISON COMPANY
as Depositor,
THE CHASE MANHATTAN BANK
as Property Trustee,
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Delaware Trustee,
THE REGULAR TRUSTEES NAMED HEREIN,
and
THE SEVERAL HOLDERS, AS DEFINED HEREIN
Dated as of ___________, 20__
SCE TRUST [__]
<PAGE>
SCE TRUST [__]
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Act Trust Agreement
Section Section
------------------ ---------------
(S) 310 (a)(1) ..................................... 8.7
(a)(2) ..................................... 8.7
(a)(3) ..................................... 8.9
(a)(4) ..................................... 2.7(a)(ii)
(b) ..................................... 8.8
(S) 311 (a) ..................................... 8.13
(b) ..................................... 8.13
(S) 312 (a) ..................................... 5.7
(b) ..................................... 5.7
(c) ..................................... 5.7
(S) 313 (a) ..................................... 8.14(a)
(a)(4) ..................................... 8.14(b)
(b) ..................................... 8.14(b)
(c) ..................................... 10.8
(d) ..................................... 8.14(c)
(S) 314 (a) ..................................... 8.15
(b) ..................................... Not Applicable
(c)(1) ..................................... 8.16
(c)(2) ..................................... 8.16
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 1.1, 8.16
(S) 315 (a) ..................................... 8.1(a), 8.3(a)
(b) ..................................... 8.2, 10.8
(c) ..................................... 8.1(a)
(d) ..................................... 8.1, 8.3
(e) ..................................... Not Applicable
(S) 316 (a) ..................................... Not Applicable
(a)(1)(A) ..................................... Not Applicable
(a)(1)(B) ..................................... Not Applicable
(a)(2) ..................................... Not Applicable
(b) ..................................... 5.14
(c) ..................................... 6.7
(S) 317 (a)(1) ..................................... Not Applicable
(a)(2) ..................................... Not Applicable
(b) ..................................... 5.9
(S) 318 (a) ..................................... 10.10
Note:This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
<PAGE>
TABLE OF CONTENTS
Page
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......................................17
SECTION 4.1. Distributions...............................................17
SECTION 4.2. Redemption..................................................18
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...............................22
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.....22
<PAGE>
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates.....................................22
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates................................................23
SECTION 5.6. Persons Deemed Securityholders..............................23
SECTION 5.7. Access to List of Securityholders' Names and Addresses......24
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...............................................31
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.....................................32
SECTION 6.9. Inspection of Records.......................................33
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.................34
<PAGE>
ARTICLE VIII THE TRUSTEES.................................................34
SECTION 8.1. Certain Duties and Responsibilities.........................34
SECTION 8.2. Certain Notices.............................................36
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....................................................44
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............................47
SECTION 9.1. Termination Upon Expiration Date............................47
SECTION 9.2. Early Termination...........................................47
SECTION 9.3. Termination.................................................47
SECTION 9.4. Liquidation.................................................47
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust...................................49
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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............................52
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 ....................................54
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _______________, 20__,
among (i) SOUTHERN CALIFORNIA EDISON COMPANY, 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 USA,
NATIONAL ASSOCIATION, a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"), (iv) [W. James Scilacci, Robert C. Boada and Mary C.
Simpson], each an officer of the Depositor, as regular trustees (the "Regular
Trustees") (the Property Trustee, the Delaware Trustee and the Regular Trustees
referred to collectively as the "Trustees") and (v) the several Holders, as
hereinafter defined.
WITNESSETH
WHEREAS, the Depositor, the Property Trustee and the Delaware Trustee have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Trust Agreement,
dated as of August 22, 2000 (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 August 22, 2000, 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;
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(c) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Supplemental Indenture) paid by the Depositor on a Like Amount of
Notes for such period.
"Additional Sums" has the meaning specified in Section 2.9 of the
Supplemental Indenture.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to
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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 required by the Depository Trust Company for
book-entry-only equity security issues, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The
Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means the "First Time of Delivery" as specified in the
Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
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"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $[___] 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 B.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located at 450 West 33rd
Street, 15th Floor, New York, New York 10001, and (ii) when used with respect to
the Indenture Trustee, the principal office of the Indenture Trustee located at
450 West 33rd Street, 15th Floor, New York, New York 10001.
"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates issued as Book-Entry
Preferred Securities Certificates as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. ss.ss.3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
the preamble to this Trust Agreement solely in its capacity as Delaware Trustee
of the Trust and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of an Indenture Event of Default; or
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(b) default by the Trust in the payment of any Distribution when it becomes
due and payable, and continuation of such default for a period of 30 days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 90 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation amount of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Guarantor and the Trust, substantially in the form attached as
Exhibit C, 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 Southern California Edison Company, a California
corporation, and its successors and assigns.
"Indenture" means the Subordinated Indenture, dated as of __________, 20__,
between the Depositor and the Indenture Trustee, as trustee, as amended or
supplemented from time to time (including by the Supplemental Indenture).
"Indenture Event of Default" means an "Event of Default," as defined in the
Indenture, with respect to the Notes.
"Indenture Redemption Date" means, with respect to any Notes to be redeemed
under the Indenture, the date fixed for redemption under the Indenture.
"Indenture Trustee" means The Chase Manhattan Bank, a New York banking
corporation, and any successor thereto.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or
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preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Notes to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Notes to Holders of Trust
Securities in connection with a dissolution or liquidation of the Trust, Notes
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Notes are distributed.
"Liquidation Amount" means the stated amount of $[___] 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 [____]%
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.
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"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor, and who shall be
reasonably acceptable to the Property Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu of
which other Preferred Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13; provided, however, that in determining whether
the Holders of the requisite Liquidation Amount of the Outstanding Preferred
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Preferred Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be disregarded
and deemed not to be Outstanding, except that (i) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
that such Trustee knows to be so owned shall be so disregarded and (ii) the
foregoing proviso shall not apply at any time when all of the outstanding
Preferred Securities are owned by the Depositor, one or more of the Trustees
and/or any such Affiliate. Preferred Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Regular Trustees the pledgee's right so to act with respect
to such Preferred Securities and that the pledgee is not the Depositor or any
Affiliate of the Depositor.
["Over-allotment Option" has the meaning specified in the Underwriting
Agreement.]
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
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"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Securityholders in which all amounts paid in respect of
the Notes will be held and from which the Property Trustee, through the Paying
Agent, shall make payments to the Securityholders in accordance with Sections
4.1 and 4.2.
"Person" means any individual, corporation, partnership (general or
limited), joint venture, trust, limited liability company or corporation,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $[___] 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 D.
"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.
"Responsible Officer" shall mean when used with respect to the Property
Trustee any officer within the Corporate Trust Office including any Vice
President, Managing Director, Assistant Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer or any other officer of the Property
Trustee customarily performing
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functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
["Second Closing Date" means the "Second Time of Delivery" as specified in
the Underwriting Agreement.]
"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
___________, 20__, 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
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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, 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 __________,
20__, 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 "SCE 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 1201 N.
Market Street, Wilmington, Delaware 19801, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Depositor. The principal executive office of the Trust is 2244 Walnut Grove
Avenue, Rosemead, California 91770.
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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.
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
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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 (A) in the case of such number, up to the nearest whole
number and (B) in the case of such amount, to the product of such number
multiplied by $[__]), against receipt by the Property Trustee from the Depositor
of such amount. Contemporaneously therewith, a Regular Trustee, on behalf of the
Trust, shall subscribe to and purchase from the Depositor Notes, registered in
the name of the Property Trustee (in its capacity as such) and having an
aggregate principal amount equal to the sum of the aggregate Liquidation Amounts
of (x) the Preferred Securities to be executed and delivered pursuant to the
third sentence of Section 2.4 and (y) the Common Securities to be executed and
delivered pursuant to the third sentence of this Section 2.5, and, in
satisfaction of the purchase price for such Notes, the Property Trustee, on
behalf of the Trust, shall deliver to the Depositor an amount equal to such
sum.]
SECTION 2.6 Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Notes, (b)
to distribute the cash payments it receives on the Notes it owns to the
Securityholders, and (c) to engage in only those activities necessary,
appropriate, convenient or incidental thereto. The Depositor hereby appoints the
Trustees as trustees of the Trust, to have all the rights, powers and duties to
the extent set forth herein, and the Trustees hereby accept such appointment.
The Property Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the benefit of the
Trust and the Securityholders. The Regular Trustees shall have all rights,
powers and duties set forth herein and in accordance with applicable law with
respect to accomplishing the purposes of the Trust. The Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any
of the duties and responsibilities, of the Trustees set forth herein. The
Delaware Trustee shall be one of the Trustees of the Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807(a) of the
Delaware Business Trust Act.
SECTION 2.7 Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) Each Regular Trustee, acting singly or collectively, shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
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(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;
(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).
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(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;
(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 the 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
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Trust Property or interests therein, including to Securityholders, except
as expressly provided herein, (iv) take any action that would cause the Trust to
fail or cease to qualify as a "grantor trust" for United States federal income
tax purposes, (v) incur any indebtedness for borrowed money or issue any other
debt or (vi) take or consent to any action that would result in the placement of
a Lien on any of the Trust Property. The Property Trustee shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Securityholders in
their capacity as Securityholders; provided, however, that (x) all expenses
relating to such defense shall be borne by the 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
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(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 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.
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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 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 __________,
20__, 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 ___________,
20__. 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
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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.
(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 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
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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 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 Securityholders 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 $[__] or an integral multiple of $[__] in excess thereof) of
the Liquidation Amount of Preferred Securities and Common Securities,
respectively, of a denomination larger than $[__]. The Property Trustee shall
promptly notify the Security Registrar in writing of the Preferred Securities
and Common Securities selected for redemption and,
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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.
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.
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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.
SECTION 4.5. Tax Returns and Reports.
The Regular Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns, payee statements and reports required to be filed by or in
respect of the Trust. In this regard, the Regular Trustees shall (a) prepare and
file (or cause to be prepared and filed) the appropriate Internal Revenue
Service form required to be filed in respect of the Trust in each taxable year
of the Trust and (b) prepare and furnish (or cause to be prepared and furnished)
to each Securityholder the appropriate Internal Revenue Service form required to
be provided. The Regular Trustees shall provide the Depositor and the Property
Trustee with a copy of all such returns and reports promptly after such filing
or furnishing. The Trustees and the Paying Agent shall comply with United States
federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Notes of Additional Sums, the Property Trustee,
pursuant to written instructions from the Depositor detailing the payments to be
made, shall promptly pay at the expense of the Depositor any taxes, duties or
governmental charges of whatsoever nature (other than withholding taxes) imposed
on the Trust by the United States or any other taxing authority.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder has directly
received pursuant to Section 2.19 of the Supplemental Indenture or Section 5.14
of this Trust Agreement.
ARTICLE V
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the formation of the Trust and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Depositor shall be the sole beneficial owner of the Trust.
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SECTION 5.2. Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $[__] Liquidation Amount and integral multiples of $[__] in
excess thereof, and the Common Securities Certificates shall be issued in
minimum denominations of $[__] Liquidation Amount and integral multiples
thereof. The Trust Securities Certificates shall be executed on behalf of the
Trust by manual signature of at 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,
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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 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.
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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 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 Trust, 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
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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, 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
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payment of the Liquidation Amount of and Distributions or Redemption
Price on the Preferred Securities evidenced by Book-Entry Preferred
Securities Certificates and the giving of instructions or directions to
Owners of Preferred Securities evidenced by Book-Entry Preferred Securities
Certificates) as the sole Holder of Preferred Securities evidenced by
Book-Entry Preferred Securities Certificates and shall have no obligations
to the Owners thereof;
(iii) to the extent that the provisions of this Section 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
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the availability of the Definitive Preferred Securities Certificates to
Owners of such class or classes, as applicable, requesting the same. Upon
surrender to the Regular Trustees or the Securities Registrar of the typewritten
Preferred Securities Certificate or Certificates representing the Book Entry
Preferred Securities Certificates by the Clearing Agency, accompanied by
registration instructions, the Regular Trustees, or any one of them, shall
execute the Definitive Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Preferred Securities Certificates, the Trustees
shall recognize the Holders of the Definitive Preferred Securities Certificates
as Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by the execution
thereof by the Regular Trustees or any one of them.
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:
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(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,
(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,
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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 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
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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, 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.
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SECTION 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $[__]
of Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
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
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instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such written instrument or instruments are delivered to the Property Trustee.
Such written instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Securityholders or Owners signing such written instrument or instruments. Proof
of execution of any such written instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this 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.
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SECTION 6.9. Inspection of Records.
Upon reasonable written notice to the Regular Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
Article 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 national association duly organized,
validly existing and in good standing;
(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;
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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;
(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 and no implied covenants or obligations shall be read into
this Trust Agreement against the Property Trustee. 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
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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 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 conclusively proved by a court of competent jurisdiction 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 in
writing; 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
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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 a Responsible Officer of 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.
Within five Business Days after the receipt of written notice of the
Depositor's exercise of its right to defer the payment of interest on the Notes
pursuant to the Indenture, the Property Trustee shall transmit, in the manner
and to the extent provided in Section 10.8, notice of such exercise to the
Securityholders and the Regular Trustees, unless such exercise shall have been
revoked.
SECTION 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully protected
in acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall take such action, or refrain from taking
such action, not inconsistent with this Trust Agreement as it shall deem
advisable and in the best interests of the Securityholders, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the Regular Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officer's Certificate;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be proved or established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is
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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;
(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; 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 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;
(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees provided that the Property Trustee shall be
responsible for its own negligence or recklessness with respect to selection of
any agent, attorney, custodian or nominee appointed by it hereunder in due care;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request written instructions from the Holders of the Trust
Securities which written instructions may only be given by the Holders of the
same proportion in aggregate Liquidation Amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the Trust
Securities in respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such written
instructions are received, and (iii) shall be protected in acting in accordance
with such written instructions; and
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(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 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,
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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.
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.
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(c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise meets the
requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 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:
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(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.
(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
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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 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 the Property Trustee or the Delaware
Trustee and each appointment of a successor to the Property Trustee or the
Delaware Trustee 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
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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).
SECTION 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, each
successor Relevant Trustee with respect to the Trust Securities shall execute 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 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.
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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 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
__________, 20__, 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
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(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.
(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.
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(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 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
USA, National Association 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
USA, National Association on the part of the Trust is made and intended not as
representations, warranties, covenants, undertakings and agreements by Chase
Manhattan Bank USA, National Association 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 USA, National Association 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.
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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:
(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
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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.
(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
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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.
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 substantially 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
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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.
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) In addition to amendments contemplated by Section 8.11, this Trust
Agreement may be amended from time to time by 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
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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 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
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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.
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 Southern
California Edison Company, 2244 Walnut Grove Avenue, Rosemead, California 91770,
Attention: Corporate Secretary, facsimile no.: 626-302-2662. Any notice to
Preferred Securityholders shall also be given to such owners as have, within two
years preceding the giving of such notice, filed their names and addresses with
the Property Trustee for that purpose. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or the Regular Trustees shall
be given in writing addressed (until another address is published by the Trust)
as follows: (a) with
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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 USA, National
Association, 1201 N. Market Street, Wilmington, Delaware 19801, Attention:
Corporate Trust; (c) with respect to the Regular Trustees, to them c/o Southern
California Edison Company, 2244 Walnut Grove Avenue, Rosemead, California 91770,
marked "Attention Regular Trustees of SCE 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.
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.
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(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 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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IN WITNESS WHEREOF, the parties have caused this Amended and Restated Trust
Agreement to be duly executed, all as of the day and year first above written.
SOUTHERN CALIFORNIA EDISON COMPANY
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
Name:
Title:
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Delaware Trustee
By:
Name:
Title:
[W. JAMES SCILACCI],
as Regular Trustee
By:
Name:
Title:
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[ROBERT C. BOADA],
as Regular Trustee
By:
Name:
Title:
[MARY C. SIMPSON],
as Regular Trustee
By:
Name:
Title:
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EXHIBIT A
CERTIFICATE OF TRUST
OF
SCE TRUST [__]
THIS Certificate of Trust of SCE Trust [__] (the "Trust"), dated August 22,
2000, is being duly executed and filed by the undersigned, as trustees of the
Trust, with the Secretary of State of the State of Delaware to form a business
trust under the Delaware Business Trust Act (12 Del. C. ss.3801 et seq.).
1. Name. The name of the business trust formed hereby is SCE 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 USA, National Association, 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 USA,
NATIONAL ASSOCIATION, as trustee
By: /s/ Denis Kelly
Name: Denis Kelly
Title: Assistant Vice President
THE CHASE MANHATTAN BANK,
as trustee
By: /s/ Alfia Monastra
Name: Alfia Monastra
Title: Vice President
A-1
<PAGE>
EXHIBIT B
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
SCE TRUST [__]
_____% COMMON SECURITIES
(LIQUIDATION AMOUNT $[__] PER COMMON SECURITY)
SCE Trust [__], a statutory business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that Southern California
Edison Company (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 $[__] 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, to the fullest extent
permitted by law, 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 _________, 20__,
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 _______________, ____.
By:
Name:
Title: Regular Trustee
B-1
<PAGE>
EXHIBIT C
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of ___________, 20__, between Southern California Edison
Company, a California corporation, and SCE 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 Southern California Edison Company and to
issue and sell _____% [________ 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 ___________, 20__, as the same may be amended from time to
time (the "Trust Agreement");
WHEREAS, Southern California Edison Company 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 Southern California Edison Company hereby
agrees shall benefit Southern California Edison Company and which purchase
Southern California Edison Company acknowledges will be made in reliance upon
the execution and delivery of this Agreement, Southern California Edison Company
and the Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by Southern California Edison Company
Subject to the terms and conditions hereof, Southern California Edison
Company 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.
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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 Southern California
Edison Company 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.
Southern California Edison Company hereby waives notice of acceptance of
this Agreement and of any Obligation to which it applies or may apply, and
Southern California Edison Company 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 Southern California
Edison Company 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, Southern California Edison Company with respect to the
happening of any of the foregoing.
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<PAGE>
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Southern
California Edison Company and Southern California Edison Company waives any
right or remedy to require that any action be brought against the Trust or any
other person or entity before proceeding against Southern California Edison
Company.
SECTION 1.6. Subrogation.
Southern California Edison Company shall be subrogated to all (if any)
rights of any Beneficiary against the Trust, in respect of any amounts paid to
the Beneficiaries by Southern California Edison Company under this Agreement;
provided, however, that Southern California Edison Company 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 Southern
California Edison Company 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):
SCE Trust [__]
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-302-1930
Attention: Corporate Governance
C-3
<PAGE>
Southern California Edison Company
2244 Walnut Grove Avenue
Rosemead, California 91770
Facsimile No.: 626-302-2662
Attention: Corporate Secretary
SECTION 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
THIS AGREEMENT is executed as of the day and year first above written.
SOUTHERN CALIFORNIA EDISON COMPANY
By:________________________________
Name:_________________________
Title:________________________
SCE TRUST [__]
By:________________________________
Name:_________________________
Title: Regular Trustee
C-4
<PAGE>
EXHIBIT D
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 SCE 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
SCE TRUST [__]
____% [____________ PREFERRED SECURITIES, SERIES [__]
(LIQUIDATION AMOUNT $[__] PER PREFERRED SECURITY)
SCE 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 SCE Trust [__] _____% [_______________]
Preferred Securities, Series [__] (liquidation amount $[__] per Preferred
Security) (the "Preferred Securities"). The Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer 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 ____________, 20__, as the
same may be amended from time to time (the "Trust Agreement") including the
designation of the terms of Preferred Securities as set forth therein. The
Holder is
D-1
<PAGE>
entitled to the benefits of the Guarantee Agreement dated as of
___________, 20__, between Southern California Edison Company, 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 ________, ____.
SCE TRUST [__]
By:
Name:
Title: Regular Trustee
D-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.
[SOUTHERN CALIFORNIA EDISON
COMPANY LOGO]
August 29, 2000
Southern California Edison Company
2244 Walnut Grove Avenue
Rosemead, California 91770
Re: Registration Statement on Form S-3 of Southern California
Edison Company, SCE Trust I and SCE Trust II
Ladies and Gentlemen:
I am an Assistant General Counsel of Southern California Edison Company, a
California corporation ("Edison"). In connection with the registration statement
on Form S-3 filed on August 29, 2000 (the "Registration Statement") by Edison,
SCE Trust I, a Delaware business trust, and SCE Trust II, a Delaware business
trust (each a "Trust," and collectively with Edison, the "Registrants"), with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), you have requested my opinion
with respect to the matters set forth below.
I have reviewed the prospectus (the "Prospectus") which is a part of the
Registration Statement. The Prospectus provides that it will be supplemented in
the future by one or more supplements to the Prospectus (each a "Prospectus
Supplement"). The Prospectus, as supplemented by various Prospectus Supplements,
will provide for the registration of up to $1,500,000,000 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, (ii) shares
of preferred stock (the "Preferred Stock"), which may be issued by Edison, (iii)
preferred securities (the "Preferred Securities"), which may be issued by each
Trust pursuant to its respective Amended and Restated Trust Agreement (each an
"Amended Trust Agreement"), and (iv) guarantees of the Preferred Securities (the
"Preferred Securities Guarantees"), which may be issued by Edison pursuant to
one or more guarantee agreements (each a "Guarantee Agreement"). The Debt
Securities, the Preferred Stock and the Preferred Securities Guarantees are
collectively referred to herein as the "Securities." 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 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 for the
authorization and issuance of the Securities. For purposes of this opinion, I
have assumed that those proceedings will be properly completed, in accordance
with all requirements of applicable federal, Delaware and California laws, in
the manner presently proposed.
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<PAGE>
I have made legal and factual examinations and inquiries, including an
examination of originals and copies certified or otherwise identified to my
satisfaction, of the documents, corporation records and instruments of the
Registrants that 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 as to certain factual matters. In
addition, I have obtained and relied upon certificates and assurances from
public officials that 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 as 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 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 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 or result in a default under or breach of any agreement or
instrument binding upon Edison, (y) the Debt Securities as executed and
delivered comply with all requirements and restrictions, if any, applicable to
Edison, whether imposed by any court or governmental or regulatory body having
jurisdiction over Edison, 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 enforceable against Edison in accordance with the
terms of the Debt Securities.
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 have taken all
necessary action to fix and determine the terms of the applicable Preferred
Securities
2
<PAGE>
Guarantees in accordance with the resolutions adopted by the Board of
Directors of Edison relating to the issuance and delivery of the Preferred
Securities Guarantees; (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,
or result in a default under or breach of any agreement or instrument binding
upon the applicable Trust or Edison; (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 has 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
enforceable in accordance with its terms.
3. Edison has the authority pursuant to its Articles of Incorporation to
issue up to 36,000,000 shares of Preferred Stock, comprising 24,000,000 shares
of Cumulative Preferred Stock, with a par value of $25 per share, and 12,000,000
shares of $100 Cumulative Preferred Stock, with a par value of $100 per share.
Upon adoption by the Board of Directors of Edison of any necessary further
resolutions and filing of any necessary certificates of determination, 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 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
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
3
<PAGE>
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, enforceable against 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 Preferred Securities Guarantees" in the Prospectus included
therein.
Very truly yours,
Kenneth S. Stewart
---------------------------
Kenneth S. Stewart
Assistant General Counsel
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
August 29, 2000
SCE Trust I
224 Walnut Grove Avenue
Rosemead, California 91770
Re: SCE Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Southern California Edison
Company, a California corporation (the "Company") and SCE 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 August 22, 2000 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on August 22, 2000;
(b) The Trust Agreement of the Trust, dated as of August 22, 2000, 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, B and D thereto) (the "Trust Agreement"), to be entered into among
the Company, 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);
1
<PAGE>
(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 the Company, the Trust and others with
the Securities and Exchange Commission on or about August 29, 2000; and
(e) A Certificate of Good Standing for the Trust obtained from the
Secretary of State on August 29, 2000.
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, that each of the parties to
the documents examined by us has been duly created, organized or formed, as the
case may be, and is validly existing in good standing under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are signatories 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) that each of the parties to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the receipt by each
Person to
2
<PAGE>
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.
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
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.
BJK/GWL/MKS
[LETTERHEAD OF RICHARDS, LAYTON & FINGER, P.A.]
August 29, 2000
SCE Trust II
224 Walnut Grove Avenue
Rosemead, California 91770
Re: SCE Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Southern California Edison
Company, a California corporation (the "Company") and SCE 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 August 22, 2000 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on August 22, 2000;
(b) The Trust Agreement of the Trust, dated as of August 22, 2000, 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, B and D thereto) (the "Trust Agreement"), to be entered into among
the Company, 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);
1
<PAGE>
(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 the Company, the Trust and others with
the Securities and Exchange Commission on or about August 29, 2000; and
(e) A Certificate of Good Standing for the Trust obtained from the
Secretary of State on August 29, 2000.
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, that each of the parties to
the documents examined by us has been duly created, organized or formed, as the
case may be, and is validly existing in good standing under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are signatories 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) that each of the parties to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the receipt by each
Person to
2
<PAGE>
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.
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
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
3
<PAGE>
consent, this opinion may not be furnished or quoted to, or relied upon by,
any other Person for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER, P.A.
BJK/GWL/MKS
