EDISON INTERNATIONAL
UNDERWRITING AGREEMENT
DEBT SECURITIES
To the Representatives named
in Schedule I hereto
of the Underwriters named
in Schedule II hereto
Ladies and Gentlemen:
Edison International, 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 September 28, 1999, as amended and supplemented (the
"Indenture"), between the Company and Xxxxxx 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 prepared and filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such Form (the file numbers of which are set forth in Schedule I hereto),
which has become effective, for the registration under the Act of the offer and
sale of securities including 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, together are 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
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"amend," "amendment" or "supplement" with respect to the Registration
Statement, the Basic 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.
(c) The Company and its subsidiaries taken as a whole has not sustained since
the date of the latest audited financial statements included or incorporated by
reference in the Final Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Final Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, there has not been any material
change in the capital stock or long-term debt of the Company and its
subsidiaries taken as a whole or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Final Prospectus.
(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Final Prospectus.
(e) The Company has an authorized capitalization as set forth in the Final
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable.
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(f) Each of Southern California Edison Company, Edison Mission Energy and
Edison Capital (the "Significant Subsidiaries") has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has power and authority (corporate and other)
to own, lease and operate its properties and to conduct its business as
described in the Final Prospectus, and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of ownership or leasing
of property or the conduct of business, except where the failure so to qualify
or be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries taken as a whole; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and all such
shares owned by the Company, directly or through subsidiaries, are owned free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or security.
(g) The Indenture has been duly authorized and duly qualified under the Trust
Indenture Act, and when executed and delivered will constitute a legal, valid
and binding instrument enforceable against the Company in accordance with its
terms (subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a proceeding in
equity or at law); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters pursuant to this Agreement,
will constitute legal, valid and binding obligations of the Company entitled to
the benefits of the Indenture.
(h) The issuance by the Company of the Securities, the compliance by the
Company with all of the provisions of this Agreement, the Securities and the
Indenture, and the consummation of the transactions contemplated herein and
therein will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Articles of Incorporation or By-Laws
of the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this Agreement,
the Securities or the Indenture, except (i) such as have been, or will have
been, prior to the Closing Date, obtained under the Act or the Trust Indenture
Act and (ii) such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the issuance and sale by the Company of the Securities.
(i) Other than as set forth in the Final Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any of their properties is the subject, which, if
determined adversely to the Company
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or any of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(j) Neither the Company nor any of its subsidiaries is in violation of its
charter or by-laws (or similar constitutional documents), or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, other than any such violation or default that would
not, individually or in the aggregate, have a material adverse effect on or
affecting the general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken as a
whole.
(k) The Company and its subsidiaries possess such certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them,
except where the failure to possess such certificates, authorities or permits,
individually or in the aggregate, would not have a material adverse effect on
the condition, financial or otherwise, or the earnings or business affairs of
the Company and its subsidiaries taken as a whole; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings or business affairs of the Company and
its subsidiaries taken as a whole.
(l) The financial statements of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and Final
Prospectus present fairly in all material respects the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the consolidated results of their operations for the periods
specified; and, except as stated therein, such financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis.
(m) The statements set forth in (i) the Basic Prospectus under the captions
"Description of Securities" and "Description of Debt Securities," and (ii) in
the Final Prospectus as amended or supplemented under the caption "Description
of the Notes," insofar as they constitute a summary of the terms of the
Securities and the Indenture and (x) in the Basic Prospectus under the caption
"Plan of Distribution" and (y) in the Final Prospectus as amended or
supplemented under the caption "Underwriting," insofar as they purport to
describe the provisions of the laws and documents referred to therein, in each
case are accurate, complete and fair in all material respects.
(n) The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Final Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940, as amended.
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(o) Xxxxxx Xxxxxxxx LLP, who have certified certain financial statements of
the Company and its subsidiaries, are independent public accountants as required
by the Act and the rules and regulations of the Commission thereunder.
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 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 the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment to the
Company of the purchase price therefor 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 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.
It is understood that the several Underwriters propose to offer the
Securities for sale to the public as set forth in the Final Prospectus.
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 of the Registration Statement or amendment or
supplement (including the Final Prospectus or any Preliminary Final Prospectus)
to the Basic Prospectus unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you 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) and will notify the
Representatives of such filing. 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.
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(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
Registration Statement or the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will (i)
notify the Representative of such an event, and (ii) 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 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.
(g) The Company will not take, directly or indirectly, any action designed to
or which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Securities.
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
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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, any 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 Xxxxxxx X. Xxxxxxx, Assistant General
Counsel of the Company, to the effect that:
(i) each of the Company and the Significant Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, 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 Final Prospectus;
(ii) all the outstanding shares of capital stock of each Significant
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Significant Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interest, claim, lien or encumbrance;
(iii) the Company's authorized equity capitalization is as set forth in the
Final Prospectus; and the Securities conform in all material respects
to the description thereof contained in the Final Prospectus;
(iv) 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;
(v) 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 in
accordance with their terms;
(vi) to the best of the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus;
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(vii) the Registration Statement has become effective under the Act; any
required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and the Final
Prospectus (other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; and such counsel
has no reason to believe that on the Effective Date or the date the
Registration Statement was last deemed amended the Registration
Statement 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 as of its date and on the Closing Date included or includes
any untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading (in
each case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion);
(viii) the Company is not and, after giving effect to the offering and sale
of the Securities and the application of the proceeds thereof as
described in the Final Prospectus, will not be an "investment company"
as defined in the Investment Company Act of 1940, as amended;
(ix) 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 obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated in this
Agreement and in the Final Prospectus and such other approvals
(specified in such opinion) as have been obtained;
(x) neither the execution and delivery of the Indenture, the issue and
sale of the Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
result in imposition of any lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries pursuant to, (i)
the charter or by-laws of the Company or its subsidiaries, (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 the Company or its subsidiaries is a
party or bound or to which its or their property is subject, or (iii)
to the knowledge of such counsel after due inquiry, any statute, law,
rule, regulation, judgment, order or decree applicable to the Company
or its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or its subsidiaries or any of its or
their properties; and
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(xi) this Agreement has been duly authorized, executed and delivered by the
Company.
In rendering the opinion called for by clauses (iv) and (v) above, Xx.
Xxxxxxx may state that his opinion as to enforceability is subject to specified
exceptions, limitations and qualifications under applicable California and
federal law.
(d) The Representatives shall have received from Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, 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, any Vice President, the Treasurer or any Assistant
Treasurer 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 his or her 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 in
the Final Prospectus (exclusive of any supplement thereto), 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 (exclusive of any supplement thereto) or as
described in such certificate.
(f) On the date hereof, Xxxxxx Xxxxxxxx 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 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;
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(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 total or per share
amounts of 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; or
(3) the information included or incorporated by reference in the
Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information) and Item 503(d) (Ratio of
Earnings to Fixed Charges) is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
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(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, Xxxxxx Xxxxxxxx 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 Xxxxx'x
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.
11
(b) At or before the Closing Date, any 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 cancelled 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 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. 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 through the Representatives 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, the directors, officers, employees and agents of
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 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 inclusion therein, and (ii) such indemnity with respect to the
12
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). 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 inclusion in 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 statements set forth in the last paragraph of the
cover page regarding delivery of the Securities and, under the heading
"Underwriting," (i) the sentence in paragraph 3 related to market making for the
securities, (ii) paragraph 4 related to sales of Securities by the Underwriter
and (iii) paragraph 5 related to stabilization, covering transactions and
penalty bids in any Preliminary Final Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Final Prospectus or the
Final Prospectus.
(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
liability which it may have to any indemnified party otherwise than under
paragraphs (a) or (b) of this Section 8. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, 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, (iii) 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 the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such
13
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that 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 or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and of the Underwriters on the
other in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other, the
intent of the parties and their relative 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 were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such 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 to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
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-
14
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 the Company 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. 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 0000 Xxxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
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. Counterparts. This Agreement may be signed in one or more counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience only and
shall not affect the construction hereof.
15
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,
EDISON INTERNATIONAL
BY: Xxxx X. Xxxxxxx
------------------------------
Xxxx X. Xxxxxxx
Assistant Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
BY: XXXXXX BROTHERS INC.
BY: Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
For themselves and the other several
Underwriters, if any, named in Schedule II
to the foregoing Agreement.
16
SCHEDULE I
Underwriting Agreement dated July 13, 2000
Registration Statement No. 333-82293
Representatives and Address:
Xxxxxx Brothers Inc.
Three World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Title, Purchase Price and Description of Securities:
Title: Floating Rate Notes Due 2001
Principal Amount: $250,000,000
Purchase Price: 100% of the principal amount of the Securities
Maturity: July 18, 2001
Interest: One month LIBOR rate plus 0.03% as described in the
Final Prospectus, payable on the 18th day of each month,
commencing with August 18, 2000, through the maturity date of
July 18, 2001, to the holders of record on the 15th calendar
day before each interest payment date.
Sinking Fund Provisions: None
Optional Redemption: None
Closing Date and Time: July 18, 2000, 7:00 AM, California time
Method of Payment: Federal Reserve funds in Los Angeles, California
Modification of items to be covered by the letter from Xxxxxx Xxxxxxxx LLP
delivered pursuant to Section 5(f):
None
Location of Closing:
Xxxxxx & Xxxxxxx
000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
SCHEDULE II
Principal
Amount
of Securities
to be
Underwriters Purchased
------------ ------------
Xxxxxx Brothers Inc................................... $250,000,000
------------
Total................................................. $250,000,000
============
