Representations and Warranties of SCE. SCE represents and warrants to the several Underwriters that: (a) SCE, in its capacity as co-registrant and sponsor with respect to the Bonds, meets the requirements to use Form SF-1 under the Securities Act. SCE, has prepared and filed with the Commission the Registration Statement Nos. 333-260838 and 000-000000-00 for registration under the Securities Act of up to $[ ] aggregate principal amount of the Bonds. Registration Statement Nos. 333-260838 and 000-000000-00 has been declared effective by the Commission and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuer, threatened by the Commission. (b) At the time the Registration Statement initially became effective, at the time of each amendment (whether by post-effective amendment, incorporated report or form of prospectus) and on the Effective Date relating to the Bonds, the Registration Statement fully complied, and the Final Prospectus, both as of its date and at the Closing Date, and the Indenture, at the Closing Date, will fully comply in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act, respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at each of the aforementioned dates, did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Final Prospectus, both as of its date and at the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon and in conformity with any Underwriter Information as defined in Section 11(b) below or to any statements in or omissions from any Statements of Eligibility on Form T-1 (or amendments thereto) of the Indenture Trustee under the Indenture filed as exhibits to the Registration Statement or to any statements or omissions made in the Registration Statement or the Final Prospectus relating to DTC Book-Entry System that are based solely on information contained in published reports of the DTC. (c) As of the Applicable Time and on the date of its filing, if applicable, the Pricing Prospectus, each Issuer Free Writing Prospectus (other than the Pricing Term Sheet) and the InTex File, when taken together as a whole, did and do not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that the principal amount of the Bonds, the tranches, the initial principal balances, the scheduled final payment dates, the final maturity dates, the expected average lives and related security data proceeds to the Issuer, underwriters’ allocation for each tranche, selling concession, reallowance discounts, issuance date, the expected amortization schedule and the expected sinking fund schedule described in the Pricing Prospectus were subject to completion or change based on market conditions, and the interest rate, price to the public and underwriting discounts and commissions for each tranche as well as certain other information dependent on the foregoing and other pricing related information was not included in the Pricing Prospectus). The Pricing Package, at the Applicable Time, did not, and at all subsequent times through the completion of the offer and the sale of the Bonds on the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The two preceding sentences do not apply to statements in or omissions from the Pricing Prospectus, the Pricing Term Sheet or any other Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information. SCE represents, warrants and agrees that it has treated and agrees that it will treat each of the free writing prospectuses listed on Schedule III hereto as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing Prospectus has fully complied and will fully comply with the applicable requirements of Rules 164 and 433 under the Securities Act, including timely Commission filing where required, legending and record keeping. (d) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offer and sale of the Bonds on the Closing Date or until any earlier date that the Issuer or SCE notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development the result of which is that such Issuer Free Writing Prospectus conflicts or would conflict with the information then contained in the Registration Statement or includes or would include an untrue statement of a material fact or, when considered together with the Pricing Prospectus, omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) SCE or the Issuer has promptly notified or will promptly notify the Representatives and (ii) SCE or the Issuer has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information. (e) SCE has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement and the Pricing Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, and has all requisite power and authority to sell Recovery Property as described in the Pricing Prospectus and to otherwise perform its obligation under any Issuer Document to which it is a party. SCE is the beneficial owner of all of the limited liability company interests of the Issuer. (f) SCE has no significant subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X. (g) The issuance and sale of the Bonds, the transfer by SCE of all of its rights and interests under the Financing Order relating to the Bonds to the Issuer, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof on the part of SCE to be fulfilled, will not conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of SCE pursuant to (i) the articles of incorporation, by-laws or other organizational documents of SCE (collectively, the “SCE Charter Documents”), (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which SCE is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to SCE of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over SCE or any of its properties. (h) This Underwriting Agreement has been duly authorized, executed and delivered by SCE, which has the necessary corporate power and authority to execute, deliver and perform its obligations under this Underwriting Agreement. (i) SCE is not in violation or default of, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in, (i) the SCE Charter Documents, (ii) any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable (except, in the case of clauses (ii) and (iii), for such violations or defaults as would not, individually or in the aggregate, have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole. (j) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving SCE or any of its subsidiaries or its or their property is pending or, to the best knowledge of SCE, threatened that (i) could reasonably be expected to, individually or in the aggregate, have a material adverse effect on the Issuer’s business, property, or financial condition or on SCE’s ability to perform its obligations under the Sale Agreement and the Servicing Agreement, or (ii) could reasonably be expected to have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole. (k) Other than the submission of the issuance advice letter and non-action on the part of the CPUC contemplated by Ordering Paragraph 14 of the Financing Order, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been already obtained and other than in connection or in compliance with the provisions of applicable blue sky laws or securities laws of any state, as to which SCE makes no representations or warranties, is legally required for the issuance and sale by the Issuer of the Bonds. (l) SCE has delivered written consent to the CPUC accepting the terms and conditions of the Financing Order. (m) SCE is not, and after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Pricing Prospectus, neither SCE nor the Issuer will be, an “investment company” within the meaning of the 1940 Act. (n) Relying on an exclusion or exemption from the definition of “investment company” under the 1940 Act under Rule 3(c)(5)(A) of the Investment Company Act, although additional exclusions or exemptions may be available, the Issuer is not a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act. (o) Each of the Sale Agreement and Servicing Agreement and Administration Agreement will have been prior to the Closing Date duly and validly authorized by SCE, and when executed and delivered by SCE and the other parties thereto will constitute a valid and legally binding obligation of SCE, enforceable against SCE in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting creditors’ or secured parties’ rights generally and by general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law, and limitations on enforceability of rights to indemnification by federal or state securities laws or regulations or by public policy. (p) There are no California transfer taxes related to the transfer of the Recovery Property or the issuance and sale of the Bonds to the Underwriters pursuant to this Underwriting Agreement required to be paid at or prior to the Closing Date by SCE or the Issuer. (q) The nationally recognized accounting firm referenced in Section 3(o) and 9(x) is a firm of independent public accountants with respect to SCE as required by the Securities Act and the rules and regulations of the Commission thereunder. (r) SCE, in its capacity as sponsor with the respect to the Bonds, has caused the Issuer to comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof. (s) SCE will comply, and has complied, in all material respects, with its diligence and disclosure obligations in respect to the Bonds under Rule 193 of the Securities Act and Items 1111(a)(7) and 1111(a)(8) of Regulation AB. (t) Neither SCE nor any of its subsidiaries nor, to the knowledge of SCE, any director, officer, agent or employee of SCE is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and SCE will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. (u) The Bonds are not subject to the risk retention requirements imposed by Section 15G of the Exchange Act. (v) At the time of filing the Registration Statement Nos. 333-260838 and 000-000000-00, at the earliest time thereafter that SCE made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Bonds and at the date hereof, SCE was not and is not an “ineligible issuer”, as defined in Rule 405 of the Rules and Regulations.
Appears in 1 contract
Representations and Warranties of SCE. SCE represents and warrants to the several Underwriters that:
(a) SCE, in its capacity as co-registrant and sponsor with respect to the Bonds, meets the requirements to use Form SF-1 under the Securities Act. SCE, has prepared and filed with the Commission the Registration Statement Nos. 333-260838 270543 and 000-000000-00 for registration under the Securities Act of up to $[ ] aggregate principal amount of the Bonds. Registration Statement Nos. 333-260838 270543 and 000-000000-00 has been declared effective by the Commission and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuer, threatened by the Commission.
(b) At the time the Registration Statement initially became effective, at the time of each amendment (whether by post-effective amendment, incorporated report or form of prospectus) and on the Effective Date relating to the Bonds, the Registration Statement fully complied, and the Final Prospectus, both as of its date and at the Closing Date, and the Indenture, at the Closing Date, will fully comply in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act, respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at each of the aforementioned dates, did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Final Prospectus, both as of its date and at the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing representations and warranties in this paragraph (b) or in paragraph
(c) below shall not apply to statements or omissions made in reliance upon and in conformity with any Underwriter Information as defined in Section 11(b) below or to any statements in or omissions from any Statements of Eligibility on Form T-1 (or amendments thereto) of the Indenture Trustee under the Indenture filed as exhibits to the Registration Statement or to any statements or omissions made in the Registration Statement or the Final Prospectus relating to DTC Book-Entry System that are based solely on information contained in published reports of the DTC.
(c) As of the Applicable Time and on the date of its filing, if applicable, the Pricing Prospectus, each Issuer Free Writing Prospectus (other than the Pricing Term Sheet) and the InTex File, when taken together as a whole, did and do not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that the principal amount of the Bonds, the tranches, the initial principal balances, the scheduled final payment dates, the final maturity dates, the expected average lives and related security data proceeds to the Issuer, underwriters’ allocation for each tranche, selling concession, reallowance discounts, issuance date, the expected amortization schedule and the expected sinking fund schedule described in the Pricing Prospectus were subject to completion or change based on market conditions, and the interest rate, price to the public and underwriting discounts and commissions for each tranche as well as certain other information dependent on the foregoing and other pricing related information was not included in the Pricing Prospectus). The Pricing Package, at the Applicable Time, did not, and at all subsequent times through the completion of the offer and the sale of the Bonds on the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The two preceding sentences do not apply to statements in or omissions from the Pricing Prospectus, the Pricing Term Sheet or any other Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information. SCE represents, warrants and agrees that it has treated and agrees that it will treat each of the free writing prospectuses listed on Schedule III hereto as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing Prospectus has fully complied and will fully comply with the applicable requirements of Rules 164 and 433 under the Securities Act, including timely Commission filing where required, legending and record keeping.
(d) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offer and sale of the Bonds on the Closing Date or until any earlier date that the Issuer or SCE notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development the result of which is that such Issuer Free Writing Prospectus conflicts or would conflict with the information then contained in the Registration Statement or includes or would include an untrue statement of a material fact or, when considered together with the Pricing Prospectus, omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) SCE or the Issuer has promptly notified or will promptly notify the Representatives and (ii) SCE or the Issuer has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Excluded Information.
(e) SCE has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement and the Pricing Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, and has all requisite power and authority to sell Recovery Property as described in the Pricing Prospectus and to otherwise perform its obligation under any Issuer Document to which it is a party. SCE is the beneficial owner of all of the limited liability company interests of the Issuer.
(f) SCE has no significant subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X.
(g) The issuance and sale of the Bonds, the transfer by SCE of all of its rights and interests under the Financing Order relating to the Bonds to the Issuer, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof on the part of SCE to be fulfilled, will not conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of SCE pursuant to (i) the articles of incorporation, by-laws or other organizational documents of SCE (collectively, the “SCE Charter Documents”), (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which SCE is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to SCE of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over SCE or any of its properties.
(h) This Underwriting Agreement has been duly authorized, executed and delivered by SCE, which has the necessary corporate power and authority to execute, deliver and perform its obligations under this Underwriting Agreement.
(i) SCE is not in violation or default of, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in, (i) the SCE Charter Documents, (ii) any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable (except, in the case of clauses (ii) and (iii), for such violations or defaults as would not, individually or in the aggregate, have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(j) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving SCE or any of its subsidiaries or its or their property is pending or, to the best knowledge of SCE, threatened that (i) could reasonably be expected to, individually or in the aggregate, have a material adverse effect on the Issuer’s business, property, or financial condition or on SCE’s ability to perform its obligations under the Sale Agreement and the Servicing Agreement, or (ii) could reasonably be expected to have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(k) Other than the submission of the issuance advice letter and non-action on the part of the CPUC contemplated by Ordering Paragraph 14 of the Financing Order, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been already obtained and other than in connection or in compliance with the provisions of applicable blue sky laws or securities laws of any state, as to which SCE makes no representations or warranties, is legally required for the issuance and sale by the Issuer of the Bonds.
(l) SCE has delivered written consent to the CPUC accepting the terms and conditions of the Financing Order.
(m) SCE is not, and after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Pricing Prospectus, neither SCE nor the Issuer will be, an “investment company” within the meaning of the 1940 Act.
(n) Relying on an exclusion or exemption from the definition of “investment company” under the 1940 Act under Rule 3(c)(5)(A) of the Investment Company Act, although additional exclusions or exemptions may be available, the Issuer is not a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(o) Each of the Sale Agreement and Servicing Agreement and Administration Agreement will have been prior to the Closing Date duly and validly authorized by SCE, and when executed and delivered by SCE and the other parties thereto will constitute a valid and legally binding obligation of SCE, enforceable against SCE in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting creditors’ or secured parties’ rights generally and by general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law, and limitations on enforceability of rights to indemnification by federal or state securities laws or regulations or by public policy.
(p) There are no California transfer taxes related to the transfer of the Recovery Property or the issuance and sale of the Bonds to the Underwriters pursuant to this Underwriting Agreement required to be paid at or prior to the Closing Date by SCE or the Issuer.
(q) The nationally recognized accounting firm referenced in Section 3(o) and 9(x) is a firm of independent public accountants with respect to SCE as required by the Securities Act and the rules and regulations of the Commission thereunder.
(r) SCE, in its capacity as sponsor with the respect to the Bonds, has caused the Issuer to comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
(s) SCE will comply, and has complied, in all material respects, with its diligence and disclosure obligations in respect to the Bonds under Rule 193 of the Securities Act and Items 1111(a)(7) and 1111(a)(8) of Regulation AB.
(t) Neither SCE nor any of its subsidiaries nor, to the knowledge of SCE, any director, officer, agent or employee of SCE is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and SCE will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(u) The Bonds are not subject to the risk retention requirements imposed by Section 15G of the Exchange Act.
(v) At the time of filing the Registration Statement Nos. 333-260838 and 000-000000-00, at the earliest time thereafter that SCE made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Bonds and at the date hereof, SCE was not and is not an “ineligible issuer”, as defined in Rule 405 of the Rules and Regulations.
Appears in 1 contract
Representations and Warranties of SCE. SCE represents and warrants to the several Underwriters that:
(a) SCE, in its capacity as co-registrant and sponsor with respect to the Bonds, meets the requirements to use Form SF-1 under the Securities Act. SCE, has prepared and filed with the Commission the Registration Statement Nos. 333-260838 249674 and 000-000000-00 for registration under the Securities Act of up to $[ ] 337,783,000 aggregate principal amount of the Bonds. Registration Statement Nos. 333-260838 249674 and 000-000000-00 has been declared effective by the Commission and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuer, threatened by the Commission.
(b) At the time the Registration Statement initially became effective, at the time of each amendment (whether by post-effective amendment, incorporated report or form of prospectus) and on the Effective Date relating to the Bonds, the Registration Statement fully complied, and the Final Prospectus, both as of its date and at the Closing Date, and the Indenture, at the Closing Date, will fully comply in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act, respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at each of the aforementioned dates, did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Final Prospectus, both as of its date and at the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon and in conformity with any Underwriter Information as defined in Section 11(b) below or to any statements in or omissions from any Statements of Eligibility on Form T-1 (or amendments thereto) of the Indenture Trustee under the Indenture filed as exhibits to the Registration Statement or to any statements or omissions made in the Registration Statement or the Final Prospectus relating to DTC The Depository Trust Company’s (“DTC”) Book-Entry System that are based solely on information contained in published reports of the DTC.
(c) As of the Applicable Time and on the date of its filing, if applicable, the Pricing Prospectus, each Issuer Free Writing Prospectus (other than the Pricing Term Sheet) and the InTex File, when taken together as a whole, did and do not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that the principal amount of the Bonds, the tranches, the initial principal balances, the scheduled final payment dates, the final maturity dates, the expected average lives and related security data proceeds to the Issuer, underwriters’ allocation for each tranche, selling concession, reallowance discounts, issuance date, the expected amortization schedule and the expected sinking fund schedule described in the Pricing Prospectus were subject to completion or change based on market conditions, and the interest rate, price to the public and underwriting discounts and commissions for each tranche as well as certain other information dependent on the foregoing and other pricing related information was not included in the Pricing Prospectus). The Pricing Package, at the Applicable Time, did not, and at all subsequent times through the completion of the offer and the sale of the Bonds on the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The two preceding sentences do not apply to statements in or omissions from the Pricing Prospectus, the Pricing Term Sheet or any other Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information. SCE represents, warrants and agrees that it has treated and agrees that it will treat each of the free writing prospectuses listed on Schedule III hereto as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing Prospectus has fully complied and will fully comply with the applicable requirements of Rules 164 and 433 under the Securities Act, including timely Commission filing where required, legending and record keeping.
(d) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offer and sale of the Bonds on the Closing Date or until any earlier date that the Issuer or SCE notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development the result of which is that such Issuer Free Writing Prospectus conflicts or would conflict with the information then contained in the Registration Statement or includes or would include an untrue statement of a material fact or, when considered together with the Pricing Prospectus, omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) SCE or the Issuer has promptly notified or will promptly notify the Representatives and (ii) SCE or the Issuer has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information.
(e) SCE has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement and the Pricing Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, and has all requisite power and authority to sell Recovery Property as described in the Pricing Prospectus and to otherwise perform its obligation under any Issuer Document to which it is a party. SCE is the beneficial owner of all of the limited liability company interests of the Issuer.
(f) SCE has no significant subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X.
(g) The issuance issue and sale of the Bonds, the transfer by SCE of all of its rights and interests under the Financing Order relating to the Bonds to the Issuer, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof on the part of SCE to be fulfilled, will not conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of SCE pursuant to (i) the articles of incorporation, by-laws or other organizational documents of SCE (collectively, the “SCE Charter Documents”), (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which SCE is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to SCE of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over SCE or any of its properties.
(h) This Underwriting Agreement has been duly authorized, executed and delivered by SCE, which has the necessary corporate power and authority to execute, deliver and perform its obligations under this Underwriting Agreement.
(i) SCE is not in violation or default of, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in, (i) the SCE Charter Documents, (ii) any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable (except, in the case of clauses (ii) and (iii), for such violations or defaults as would not, individually or in the aggregate, have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(j) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving SCE or any of its subsidiaries or its or their property is pending or, to the best knowledge of SCE, threatened that (i) could reasonably be expected to, individually or in the aggregate, have a material adverse effect on the Issuer’s business, property, or financial condition or on SCE’s ability to perform its obligations under the Sale Agreement and the Servicing Agreement, or (ii) could reasonably be expected to have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(k) Other than the submission filing of the issuance advice letter and non-action on the part of the CPUC contemplated by Ordering Paragraph 14 of the Financing Order, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been already obtained and other than in connection or in compliance with the provisions of applicable blue sky laws or securities laws of any state, as to which SCE makes no representations or warranties, is legally required for the issuance and sale by the Issuer of the Bonds.
(l) SCE has delivered written consent to the CPUC accepting the terms and conditions of the Financing Order.
(m) SCE is not, and after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Pricing Prospectus, neither SCE nor the Issuer will be, an “investment company” within the meaning of the 1940 Act.
(n) Relying on an exclusion or exemption from the definition of “investment company” under the 1940 Act under Rule 3(c)(5)(A) of 3a-7 under the Investment Company Act, although additional exclusions or exemptions may be available, the Issuer is not a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(o) Each of the Sale Agreement and Servicing Agreement and Administration Agreement will have been prior to the Closing Date duly and validly authorized by SCE, and when executed and delivered by SCE and the other parties thereto will constitute a valid and legally binding obligation of SCE, enforceable against SCE in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting creditors’ or secured parties’ rights generally and by general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law, and limitations on enforceability of rights to indemnification by federal or state securities laws or regulations or by public policy.
(p) There are no California transfer taxes related to the transfer of the Recovery Property or the issuance and sale of the Bonds to the Underwriters pursuant to this Underwriting Agreement required to be paid at or prior to the Closing Date by SCE or the Issuer.
(q) The nationally recognized accounting firm referenced in Section 3(o) and 9(x) is a firm of independent public accountants with respect to SCE as required by the Securities Act and the rules and regulations of the Commission thereunder.
(r) SCE, in its capacity as sponsor with the respect to the Bonds, has caused the Issuer to comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
(s) SCE will comply, and has complied, in all material respects, with its diligence and disclosure obligations in respect to the Bonds under Rule 193 of the Securities Act and Items 1111(a)(7) and 1111(a)(8) of Regulation AB.
(t) Neither SCE nor any of its subsidiaries nor, to the knowledge of SCE, any director, officer, agent or employee of SCE is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and SCE will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(u) The Bonds are not subject to the risk retention requirements imposed by Section 15G of the Exchange Act.
(v) At the time of filing the Registration Statement Nos. 333-260838 249674 and 000-000000-00, at the earliest time thereafter that SCE made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Bonds and at the date hereof, SCE was not and is not an “ineligible issuer”, as defined in Rule 405 of the Rules and Regulations.
Appears in 1 contract
Representations and Warranties of SCE. SCE represents and warrants to the several Underwriters that:
(a) SCE, in its capacity as co-registrant and sponsor with respect to the Bonds, meets the requirements to use Form SF-1 under the Securities Act. SCE, has prepared and filed with the Commission the Registration Statement Nos. 333-260838 249674 and 000-000000-00 for registration under the Securities Act of up to $[ [337,783,000] aggregate principal amount of the Bonds. Registration Statement Nos. 333-260838 249674 and 000-000000-00 has been declared effective by the Commission and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuer, threatened by the Commission.
(b) At the time the Registration Statement initially became effective, at the time of each amendment (whether by post-effective amendment, incorporated report or form of prospectus) and on the Effective Date relating to the Bonds, the Registration Statement fully complied, and the Final Prospectus, both as of its date and at the Closing Date, and the Indenture, at the Closing Date, will fully comply in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act, respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at each of the aforementioned dates, did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Final Prospectus, both as of its date and at the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon and in conformity with any Underwriter Information as defined in Section 11(b) below or to any statements in or omissions from any Statements of Eligibility on Form T-1 (or amendments thereto) of the Indenture Trustee under the Indenture filed as exhibits to the Registration Statement or to any statements or omissions made in the Registration Statement or the Final Prospectus relating to DTC The Depository Trust Company’s (“DTC”) Book-Entry System that are based solely on information contained in published reports of the DTC.
(c) As of the Applicable Time and on the date of its filing, if applicable, the Pricing Prospectus, each Issuer Free Writing Prospectus (other than the Pricing Term Sheet) and the InTex File, when taken together as a whole, did and do not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that the principal amount of the Bonds, the tranches, the initial principal balances, the scheduled final payment dates, the final maturity dates, the expected average lives and related security data proceeds to the Issuer, underwriters’ allocation for each tranche, selling concession, reallowance discounts, issuance date, the expected amortization schedule and the expected sinking fund schedule described in the Pricing Prospectus were subject to completion or change based on market conditions, and the interest rate, price to the public and underwriting discounts and commissions for each tranche as well as certain other information dependent on the foregoing and other pricing related information was not included in the Pricing Prospectus). The Pricing Package, at the Applicable Time, did not, and at all subsequent times through the completion of the offer and the sale of the Bonds on the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The two preceding sentences do not apply to statements in or omissions from the Pricing Prospectus, the Pricing Term Sheet or any other Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information. SCE represents, warrants and agrees that it has treated and agrees that it will treat each of the free writing prospectuses listed on Schedule III hereto as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing Prospectus has fully complied and will fully comply with the applicable requirements of Rules 164 and 433 under the Securities Act, including timely Commission filing where required, legending and record keeping.
(d) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offer and sale of the Bonds on the Closing Date or until any earlier date that the Issuer or SCE notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development the result of which is that such Issuer Free Writing Prospectus conflicts or would conflict with the information then contained in the Registration Statement or includes or would include an untrue statement of a material fact or, when considered together with the Pricing Prospectus, omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) SCE or the Issuer has promptly notified or will promptly notify the Representatives and (ii) SCE or the Issuer has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information.
(e) SCE has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement and the Pricing Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, and has all requisite power and authority to sell Recovery Property as described in the Pricing Prospectus and to otherwise perform its obligation under any Issuer Document to which it is a party. SCE is the beneficial owner of all of the limited liability company interests of the Issuer.
(f) SCE has no significant subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X.
(g) The issuance issue and sale of the Bonds, the transfer by SCE of all of its rights and interests under the Financing Order relating to the Bonds to the Issuer, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof on the part of SCE to be fulfilled, will not conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of SCE pursuant to (i) the articles of incorporation, by-laws or other organizational documents of SCE (collectively, the “SCE Charter Documents”), (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which SCE is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to SCE of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over SCE or any of its properties.
(h) This Underwriting Agreement has been duly authorized, executed and delivered by SCE, which has the necessary corporate power and authority to execute, deliver and perform its obligations under this Underwriting Agreement.
(i) SCE is not in violation or default of, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in, (i) the SCE Charter Documents, (ii) any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable (except, in the case of clauses (ii) and (iii), for such violations or defaults as would not, individually or in the aggregate, have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(j) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving SCE or any of its subsidiaries or its or their property is pending or, to the best knowledge of SCE, threatened that (i) could reasonably be expected to, individually or in the aggregate, have a material adverse effect on the Issuer’s business, property, or financial condition or on SCE’s ability to perform its obligations under the Sale Agreement and the Servicing Agreement, or (ii) could reasonably be expected to have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(k) Other than the submission filing of the issuance advice letter and non-action on the part of the CPUC contemplated by Ordering Paragraph 14 of the Financing Order, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been already obtained and other than in connection or in compliance with the provisions of applicable blue sky laws or securities laws of any state, as to which SCE makes no representations or warranties, is legally required for the issuance and sale by the Issuer of the Bonds.
(l) SCE has delivered written consent to the CPUC accepting the terms and conditions of the Financing Order.
(m) SCE is not, and after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Pricing Prospectus, neither SCE nor the Issuer will be, an “investment company” within the meaning of the 1940 Act.
(n) Relying on an exclusion or exemption from the definition of “investment company” under the 1940 Act under Rule 3(c)(5)(A) of 3a-7 under the Investment Company Act, although additional exclusions or exemptions may be available, the Issuer is not a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(o) Each of the Sale Agreement and Servicing Agreement and Administration Agreement will have been prior to the Closing Date duly and validly authorized by SCE, and when executed and delivered by SCE and the other parties thereto will constitute a valid and legally binding obligation of SCE, enforceable against SCE in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting creditors’ or secured parties’ rights generally and by general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law, and limitations on enforceability of rights to indemnification by federal or state securities laws or regulations or by public policy.
(p) There are no California transfer taxes related to the transfer of the Recovery Property or the issuance and sale of the Bonds to the Underwriters pursuant to this Underwriting Agreement required to be paid at or prior to the Closing Date by SCE or the Issuer.
(q) The nationally recognized accounting firm referenced in Section 3(o) and 9(x) is a firm of independent public accountants with respect to SCE as required by the Securities Act and the rules and regulations of the Commission thereunder.
(r) SCE, in its capacity as sponsor with the respect to the Bonds, has caused the Issuer to comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
(s) SCE will comply, and has complied, in all material respects, with its diligence and disclosure obligations in respect to the Bonds under Rule 193 of the Securities Act and Items 1111(a)(7) and 1111(a)(8) of Regulation AB.
(t) Neither SCE nor any of its subsidiaries nor, to the knowledge of SCE, any director, officer, agent or employee of SCE is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and SCE will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(u) The Bonds are not subject to the risk retention requirements imposed by Section 15G of the Exchange Act.
(v) At the time of filing the Registration Statement Nos. 333-260838 249674 and 000-000000-00, at the earliest time thereafter that SCE made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Bonds and at the date hereof, SCE was not and is not an “ineligible issuer”, as defined in Rule 405 of the Rules and Regulations.
Appears in 1 contract
Representations and Warranties of SCE. SCE represents and warrants to the several Underwriters that:
(a) SCE, in its capacity as co-registrant and sponsor with respect to the Bonds, meets the requirements to use Form SF-1 under the Securities Act. SCE, has prepared and filed with the Commission the Registration Statement Nos. 333-260838 and 000-000000-00 for registration under the Securities Act of up to $[ ] 533,265,000 aggregate principal amount of the Bonds. Registration Statement Nos. 333-260838 and 000-000000-00 has been declared effective by the Commission and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuer, threatened by the Commission.
(b) At the time the Registration Statement initially became effective, at the time of each amendment (whether by post-effective amendment, incorporated report or form of prospectus) and on the Effective Date relating to the Bonds, the Registration Statement fully complied, and the Final Prospectus, both as of its date and at the Closing Date, and the Indenture, at the Closing Date, will fully comply in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act, respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at each of the aforementioned dates, did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Final Prospectus, both as of its date and at the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing representations and warranties in this paragraph (b) shall not apply to statements or omissions made in reliance upon and in conformity with any Underwriter Information as defined in Section 11(b) below or to any statements in or omissions from any Statements of Eligibility on Form T-1 (or amendments thereto) of the Indenture Trustee under the Indenture filed as exhibits to the Registration Statement or to any statements or omissions made in the Registration Statement or the Final Prospectus relating to DTC The Depositary Trust Company’s (“DTC”) Book-Entry System that are based solely on information contained in published reports of the DTC.
(c) As of the Applicable Time and on the date of its filing, if applicable, the Pricing Prospectus, each Issuer Free Writing Prospectus (other than the Pricing Term Sheet) and the InTex File, when taken together as a whole, did and do not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that the principal amount of the Bonds, the tranches, the initial principal balances, the scheduled final payment dates, the final maturity dates, the expected average lives and related security data proceeds to the Issuer, underwriters’ allocation for each tranche, selling concession, reallowance discounts, issuance date, the expected amortization schedule and the expected sinking fund schedule described in the Pricing Prospectus were subject to completion or change based on market conditions, and the interest rate, price to the public and underwriting discounts and commissions for each tranche as well as certain other information dependent on the foregoing and other pricing related information was not included in the Pricing Prospectus). The Pricing Package, at the Applicable Time, did not, and at all subsequent times through the completion of the offer and the sale of the Bonds on the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The two preceding sentences do not apply to statements in or omissions from the Pricing Prospectus, the Pricing Term Sheet or any other Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information. SCE represents, warrants and agrees that it has treated and agrees that it will treat each of the free writing prospectuses listed on Schedule III hereto as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing Prospectus has fully complied and will fully comply with the applicable requirements of Rules 164 and 433 under the Securities Act, including timely Commission filing where required, legending and record keeping.
(d) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offer and sale of the Bonds on the Closing Date or until any earlier date that the Issuer or SCE notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development the result of which is that such Issuer Free Writing Prospectus conflicts or would conflict with the information then contained in the Registration Statement or includes or would include an untrue statement of a material fact or, when considered together with the Pricing Prospectus, omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) SCE or the Issuer has promptly notified or will promptly notify the Representatives and (ii) SCE or the Issuer has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information.
(e) SCE has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement and the Pricing Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, and has all requisite power and authority to sell Recovery Property as described in the Pricing Prospectus and to otherwise perform its obligation under any Issuer Document to which it is a party. SCE is the beneficial owner of all of the limited liability company interests of the Issuer.
(f) SCE has no significant subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X.
(g) The issuance and sale of the Bonds, the transfer by SCE of all of its rights and interests under the Financing Order relating to the Bonds to the Issuer, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof on the part of SCE to be fulfilled, will not conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of SCE pursuant to (i) the articles of incorporation, by-laws or other organizational documents of SCE (collectively, the “SCE Charter Documents”), (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which SCE is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to SCE of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over SCE or any of its properties.
(h) This Underwriting Agreement has been duly authorized, executed and delivered by SCE, which has the necessary corporate power and authority to execute, deliver and perform its obligations under this Underwriting Agreement.
(i) SCE is not in violation or default of, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in, (i) the SCE Charter Documents, (ii) any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable (except, in the case of clauses (ii) and (iii), for such violations or defaults as would not, individually or in the aggregate, have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(j) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving SCE or any of its subsidiaries or its or their property is pending or, to the best knowledge of SCE, threatened that (i) could reasonably be expected to, individually or in the aggregate, have a material adverse effect on the Issuer’s business, property, or financial condition or on SCE’s ability to perform its obligations under the Sale Agreement and the Servicing Agreement, or (ii) could reasonably be expected to have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(k) Other than the submission of the issuance advice letter and non-action on the part of the CPUC contemplated by Ordering Paragraph 14 of the Financing Order, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been already obtained and other than in connection or in compliance with the provisions of applicable blue sky laws or securities laws of any state, as to which SCE makes no representations or warranties, is legally required for the issuance and sale by the Issuer of the Bonds.
(l) SCE has delivered written consent to the CPUC accepting the terms and conditions of the Financing Order.
(m) SCE is not, and after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Pricing Prospectus, neither SCE nor the Issuer will be, an “investment company” within the meaning of the 1940 Act.
(n) Relying on an exclusion or exemption from the definition of “investment company” under the 1940 Act under Rule 3(c)(5)(A) of the Investment Company Act, although additional exclusions or exemptions may be available, the Issuer is not a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(o) Each of the Sale Agreement and Servicing Agreement and Administration Agreement will have been prior to the Closing Date duly and validly authorized by SCE, and when executed and delivered by SCE and the other parties thereto will constitute a valid and legally binding obligation of SCE, enforceable against SCE in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting creditors’ or secured parties’ rights generally and by general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law, and limitations on enforceability of rights to indemnification by federal or state securities laws or regulations or by public policy.
(p) There are no California transfer taxes related to the transfer of the Recovery Property or the issuance and sale of the Bonds to the Underwriters pursuant to this Underwriting Agreement required to be paid at or prior to the Closing Date by SCE or the Issuer.
(q) The nationally recognized accounting firm referenced in Section 3(o) and 9(x) is a firm of independent public accountants with respect to SCE as required by the Securities Act and the rules and regulations of the Commission thereunder.
(r) SCE, in its capacity as sponsor with the respect to the Bonds, has caused the Issuer to comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
(s) SCE will comply, and has complied, in all material respects, with its diligence and disclosure obligations in respect to the Bonds under Rule 193 of the Securities Act and Items 1111(a)(7) and 1111(a)(8) of Regulation AB.
(t) Neither SCE nor any of its subsidiaries nor, to the knowledge of SCE, any director, officer, agent or employee of SCE is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and SCE will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(u) The Bonds are not subject to the risk retention requirements imposed by Section 15G of the Exchange Act.
(v) At the time of filing the Registration Statement Nos. 333-260838 and 000-000000-00, at the earliest time thereafter that SCE made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Bonds and at the date hereof, SCE was not and is not an “ineligible issuer”, as defined in Rule 405 of the Rules and Regulations.
Appears in 1 contract
Representations and Warranties of SCE. SCE represents and warrants to the several Underwriters that:
(a) SCE, in its capacity as co-registrant and sponsor with respect to the Bonds, meets the requirements to use Form SF-1 under the Securities Act. SCE, has prepared and filed with the Commission the Registration Statement Nos. 333-260838 270543 and 000-000000-00 for registration under the Securities Act of up to $[ ] 780,000,000 aggregate principal amount of the Bonds. Registration Statement Nos. 333-260838 270543 and 000-000000-00 has been declared effective by the Commission and no stop order suspending such effectiveness has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Issuer, threatened by the Commission.
(b) At the time the Registration Statement initially became effective, at the time of each amendment (whether by post-effective amendment, incorporated report or form of prospectus) and on the Effective Date relating to the Bonds, the Registration Statement fully complied, and the Final Prospectus, both as of its date and at the Closing Date, and the Indenture, at the Closing Date, will fully comply in all material respects with the applicable provisions of the Securities Act and the Trust Indenture Act, respectively, and, in each case, the applicable instructions, rules and regulations of the Commission thereunder; the Registration Statement, at each of the aforementioned dates, did not and will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; the Final Prospectus, both as of its date and at the Closing Date, will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the foregoing representations and warranties in this paragraph (b) or in paragraph
(c) below shall not apply to statements or omissions made in reliance upon and in conformity with any Underwriter Information as defined in Section 11(b) below or to any statements in or omissions from any Statements of Eligibility on Form T-1 (or amendments thereto) of the Indenture Trustee under the Indenture filed as exhibits to the Registration Statement or to any statements or omissions made in the Registration Statement or the Final Prospectus relating to DTC Book-Entry System that are based solely on information contained in published reports of the DTC.
(c) As of the Applicable Time and on the date of its filing, if applicable, the Pricing Prospectus, each Issuer Free Writing Prospectus (other than the Pricing Term Sheet) and the InTex File, when taken together as a whole, did and do not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that the principal amount of the Bonds, the tranches, the initial principal balances, the scheduled final payment dates, the final maturity dates, the expected average lives and related security data proceeds to the Issuer, underwriters’ allocation for each tranche, selling concession, reallowance discounts, issuance date, the expected amortization schedule and the expected sinking fund schedule described in the Pricing Prospectus were subject to completion or change based on market conditions, and the interest rate, price to the public and underwriting discounts and commissions for each tranche as well as certain other information dependent on the foregoing and other pricing related information was not included in the Pricing Prospectus). The Pricing Package, at the Applicable Time, did not, and at all subsequent times through the completion of the offer and the sale of the Bonds on the Closing Date, will not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The two preceding sentences do not apply to statements in or omissions from the Pricing Prospectus, the Pricing Term Sheet or any other Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Information. SCE represents, warrants and agrees that it has treated and agrees that it will treat each of the free writing prospectuses listed on Schedule III hereto as an Issuer Free Writing Prospectus, and that each such Issuer Free Writing Prospectus has fully complied and will fully comply with the applicable requirements of Rules 164 and 433 under the Securities Act, including timely Commission filing where required, legending and record keeping.
(d) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the offer and sale of the Bonds on the Closing Date or until any earlier date that the Issuer or SCE notified or notifies the Representatives as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development the result of which is that such Issuer Free Writing Prospectus conflicts or would conflict with the information then contained in the Registration Statement or includes or would include an untrue statement of a material fact or, when considered together with the Pricing Prospectus, omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, (i) SCE or the Issuer has promptly notified or will promptly notify the Representatives and (ii) SCE or the Issuer has promptly amended or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The foregoing two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with any Underwriter Excluded Information.
(e) SCE has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement and the Pricing Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that requires such qualification, and has all requisite power and authority to sell Recovery Property as described in the Pricing Prospectus and to otherwise perform its obligation under any Issuer Document to which it is a party. SCE is the beneficial owner of all of the limited liability company interests of the Issuer.
(f) SCE has no significant subsidiaries within the meaning of Rule 1-02(w) of Regulation S-X.
(g) The issuance and sale of the Bonds, the transfer by SCE of all of its rights and interests under the Financing Order relating to the Bonds to the Issuer, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof on the part of SCE to be fulfilled, will not conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of SCE pursuant to (i) the articles of incorporation, by-laws or other organizational documents of SCE (collectively, the “SCE Charter Documents”), (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which SCE is a party or bound or to which its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to SCE of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over SCE or any of its properties.
(h) This Underwriting Agreement has been duly authorized, executed and delivered by SCE, which has the necessary corporate power and authority to execute, deliver and perform its obligations under this Underwriting Agreement.
(i) SCE is not in violation or default of, and no event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in, (i) the SCE Charter Documents, (ii) any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject or (iii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over it or any of its properties, as applicable (except, in the case of clauses (ii) and (iii), for such violations or defaults as would not, individually or in the aggregate, have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(j) No action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving SCE or any of its subsidiaries or its or their property is pending or, to the best knowledge of SCE, threatened that (i) could reasonably be expected to, individually or in the aggregate, have a material adverse effect on the Issuer’s business, property, or financial condition or on SCE’s ability to perform its obligations under the Sale Agreement and the Servicing Agreement, or (ii) could reasonably be expected to have a material adverse effect on the business, property or financial condition of SCE and its subsidiaries considered as a whole.
(k) Other than the submission of the issuance advice letter and non-action on the part of the CPUC contemplated by Ordering Paragraph 14 of the Financing Order, no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been already obtained and other than in connection or in compliance with the provisions of applicable blue sky laws or securities laws of any state, as to which SCE makes no representations or warranties, is legally required for the issuance and sale by the Issuer of the Bonds.
(l) SCE has delivered written consent to the CPUC accepting the terms and conditions of the Financing Order.
(m) SCE is not, and after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Pricing Prospectus, neither SCE nor the Issuer will be, an “investment company” within the meaning of the 1940 Act.
(n) Relying on an exclusion or exemption from the definition of “investment company” under the 1940 Act under Rule 3(c)(5)(A) of the Investment Company Act, although additional exclusions or exemptions may be available, the Issuer is not a “covered fund” for purposes of the regulations adopted to implement Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act.
(o) Each of the Sale Agreement and Servicing Agreement and Administration Agreement will have been prior to the Closing Date duly and validly authorized by SCE, and when executed and delivered by SCE and the other parties thereto will constitute a valid and legally binding obligation of SCE, enforceable against SCE in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting creditors’ or secured parties’ rights generally and by general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law, and limitations on enforceability of rights to indemnification by federal or state securities laws or regulations or by public policy.
(p) There are no California transfer taxes related to the transfer of the Recovery Property or the issuance and sale of the Bonds to the Underwriters pursuant to this Underwriting Agreement required to be paid at or prior to the Closing Date by SCE or the Issuer.
(q) The nationally recognized accounting firm referenced in Section 3(o) and 9(x) is a firm of independent public accountants with respect to SCE as required by the Securities Act and the rules and regulations of the Commission thereunder.
(r) SCE, in its capacity as sponsor with the respect to the Bonds, has caused the Issuer to comply with the 17g-5 Representations, other than (x) any noncompliance of the 17g-5 Representations that would not have a material adverse effect on the rating of the Bonds or the Bonds or (y) any noncompliance arising from the breach by an Underwriter of the representations and warranties and covenants set forth in Section 13 hereof.
(s) SCE will comply, and has complied, in all material respects, with its diligence and disclosure obligations in respect to the Bonds under Rule 193 of the Securities Act and Items 1111(a)(7) and 1111(a)(8) of Regulation AB.
(t) Neither SCE nor any of its subsidiaries nor, to the knowledge of SCE, any director, officer, agent or employee of SCE is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and SCE will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(u) The Bonds are not subject to the risk retention requirements imposed by Section 15G of the Exchange Act.
(v) At the time of filing the Registration Statement Nos. 333-260838 and 000-000000-00, at the earliest time thereafter that SCE made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Bonds and at the date hereof, SCE was not and is not an “ineligible issuer”, as defined in Rule 405 of the Rules and Regulations.
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