EIX Trust I
EIX Trust II
EIX Trust III
Preferred Securities
guaranteed to the extent set forth in the Guarantees by
Edison International
Underwriting Agreement
July 21, 1999
To the Representatives of the several Underwriters
named in the respective Pricing Agreements
hereinafter described
Ladies and Gentlemen:
From time to time EIX Trust I, EIX Trust II or EIX Trust III, each a
statutory business trust formed under the laws of the State of Delaware (each a
"Trust" and collectively the "Trusts"), and Edison International, a California
corporation (the "Company"), as depositor of each Trust and as guarantor,
propose to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, that the Trust identified in the applicable Pricing
Agreement (such Trust being the "Designated Trust" with respect to such Pricing
Agreement) issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified therein) certain of its
preferred securities (the "Securities") representing undivided beneficial
interests in the assets of the Designated Trust. The Securities specified in
such Pricing Agreement are referred to as the "Firm Designated Securities" with
respect to such Pricing Agreement. If specified in such Pricing Agreement, the
Designated Trust may grant the Underwriters the right to purchase at their
election an additional number of Securities, specified as provided in such
Pricing Agreement as provided in Section 3 hereof (the "Optional Designated
Securities"). The Firm Designated Securities and any Optional Designated
Securities are collectively called the "Designated Securities." The proceeds of
the sale of the Designated Securities to the public and of common securities of
the Designated Trust (the "Common Securities") to the Company concurrently with
the sale of the Designated Securities are to be invested in subordinated
deferrable interest debentures of the Company (the "Subordinated Debentures")
identified in the Pricing Agreement with respect to such Designated Securities
(with respect to such Pricing Agreement, the "Designated Subordinated
Debentures"), to be issued pursuant to a subordinated indenture to be
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dated as of July 26, 1999 (as supplemented or amended from time to time, the
"Subordinated Indenture") between the Company and The Chase Manhattan Bank, as
trustee (the "Indenture Trustee"). The Designated Securities will be guaranteed
by the Company to the extent set forth in a Guarantee Agreement between the
Company and The Chase Manhattan Bank, as trustee, with respect to such
Designated Securities (the "Designated Guarantee") (all such Designated
Guarantees together, the "Guarantees").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the amended and restated trust agreement identified in such
Pricing Agreement (with respect to such Pricing Agreement, the "Trust
Agreement").
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of any Trust to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of any Trust to issue and sell any of the Securities
and the obligation of any of the Underwriters to purchase any of the Securities
shall be evidenced by the Pricing Agreement with respect to the Designated
Securities specified therein. Each Pricing Agreement shall specify the aggregate
liquidation amount of Firm Designated Securities, the maximum aggregate
liquidation amount of Optional Designated Securities, if any, the initial public
offering price of such Firm Designated Securities and Optional Designated
Securities or the manner of determining such price, the terms of the Designated
Securities, including the terms on which and terms of the securities into which
the Designated Securities will be exchangeable, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the number of such Designated Securities to be purchased by
each Underwriter and the commission, if any, payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of delivery of
such Firm Designated Securities and such Optional Designated Securities, if any,
and payment therefor. The Pricing Agreement shall also specify (to the extent
not set forth in the Trust Agreement and the registration statement and
prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. Each of the Company and the Designated Trust, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
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(a) A registration statement on Form S-3 (File No 333-82293)
(the "Initial Registration Statement") in respect of the Securities,
the Subordinated Debentures and the Guarantees has been filed with the
Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to the
Representatives, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size
of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement or document incorporated
by reference therein has heretofore been filed or transmitted for
filing with the Commission (other than documents filed after the filing
date of the Initial Registration Statement under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act, each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) under the Act, is hereinafter called a "Preliminary Prospectus";
the various parts of the Initial Registration Statement, any
post-effective amendment thereto and the Rule 462(b) Registration
Statement, if any, including (i) the information contained in the form
of any final prospectus filed with the Commission pursuant to Rule
424(b) under the Act and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was
declared effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, (ii) all
exhibits thereto and (iii) the documents incorporated by reference in
the prospectus contained in the Initial Registration Statement at the
time such part of the Initial Registration Statement became effective
but excluding Form T-1, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, the Subordinated
Debentures and the Guarantees, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Exchange Act
and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be, as of the date of filing of such
document; any reference to any amendment to the Initial Registration
Statement shall be deemed to refer to and include any annual report of
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either the Trusts or the Company filed pursuant to Sections 13(a) or
15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; the Prospectus at the time it
was filed did not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(c) The Registration Statement conforms, and any further
amendments or supplements to the Registration Statement will conform,
in all material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder and does not and
will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating
to such Securities;
(d) Neither the Designated Trust nor the Company and any of
its subsidiaries (other than the Designated Trust) taken as a whole has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus
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any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material change in the capital stock or long-term debt of the
Designated Trust or the Company and its subsidiaries (other than the
Designated Trust) taken as a whole or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Designated Trust
or the Company and its subsidiaries (other than the Designated Trust)
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Designated Trust has been duly created and is validly
existing as a business trust in good standing under the laws of the
State of Delaware, with power and authority to conduct its business as
described in the Prospectus;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; all the outstanding beneficial interests in
the Designated Trust have been duly and validly authorized and issued,
are fully paid and non-assessable and conform in all material respects
to the descriptions thereof contained in the Prospectus;
(h) Each of Southern California Edison Company, Edison Mission
Energy and Edison Capital (the "Significant Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
power and authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in the Prospectus,
and is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of ownership or leasing of property or the
conduct of business, except where the failure so to qualify or be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings or business affairs
of the Company and its subsidiaries taken as a whole; and all of the
issued and outstanding capital stock of each Significant Subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and all such shares owned by the Company, directly or
through subsidiaries, are owned free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or security;
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(i) When the Designated Securities are issued and delivered
pursuant to this Agreement and the Pricing Agreement with respect to
such Designated Securities and, in the case of any Optional Designated
Securities, pursuant to Over-allotment Options (as defined in Section 3
hereof) with respect to such Securities, such Designated Securities
will be duly and validly authorized and issued and will be fully paid
and non-assessable beneficial interests in the Designated Trust
entitled to the benefits provided by the applicable Trust Agreement;
the issuance of the Designated Securities will not be subject to
preemptive or other similar right; and the Designated Securities will
conform in all material respects to the description thereof contained
in the Prospectus as amended or supplemented with respect to such
Designated Securities;
(j) The holders of the Designated Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
(k) When the Common Securities of the Designated Trust are
issued and delivered pursuant to the applicable Trust Agreement, such
Common Securities will be duly and validly authorized and issued and
will be fully paid beneficial interests in the Designated Trust and
will conform in all material respects to the description thereof
contained in the Prospectus; the issuance of the Common Securities of
the Designated Trust will not be subject to preemptive or other similar
rights; the Common Securities of the Designated Trust will not be
subject to preemptive or other similar rights; and at each Time of
Delivery (as defined in Section 4 hereof), all of the issued and
outstanding Common Securities of the Designated Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity;
(l) The Designated Guarantee, the Agreement as to Expenses and
Liabilities between the Company and the Designated Trust in the form
set forth in Exhibit D to the Trust Agreement (the "Designated Expense
Agreement") (all such Designated Expense Agreements together, the
"Expense Agreements'), the Trust Agreement for the Designated Trust,
the Designated Subordinated Debentures and the Subordinated Indenture
(the Designated Guarantee, the Designated Expense Agreement, such Trust
Agreement, the Designated Subordinated Debentures and the Subordinated
Indenture being collectively referred to as the "Company Agreements")
have each been duly authorized by the Company and, when executed and
delivered by the Company and (i) in the case of the Designated
Guarantee, by the Guarantee Trustee (as defined in the Designated
Guarantee), (ii) in the case of the Designated Expense Agreement, by
the Designated Trust, (iii) in the case of the Trust Agreement, by the
Trustees (as defined in the Trust Agreement) and (iv) in the case of
the Subordinated Indenture, by the Indenture Trustee, and in the case
of the Designated Subordinated Debentures, when authenticated and
delivered by the Indenture Trustee, will be duly executed and delivered
by the Company (and, in the case of the Designated Subordinated
Debentures, duly authenticated and issued) and will constitute at each
Time of Delivery valid and legally
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binding obligations of the Company, enforceable in accordance with
their respective terms (and, in the case of the Designated
Subordinated Debentures, entitled to the benefits of the Subordinated
Indenture), subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Trust Agreement, the Subordinated Indenture and the Designated
Guarantee have each been duly qualified under the Trust Indenture Act;
and the Company Agreements, which will be in substantially the form
filed as exhibits to the Registration Statement, will conform in all
material respects to the descriptions thereof in the Prospectus as
amended or supplemented with respect to the Designated Securities to
which they relate;
(m) The issue and sale of the Designated Securities and the
Common Securities by the Designated Trust, the compliance by the
Designated Trust with all of the provisions of this Agreement, any
Pricing Agreement and each Over-allotment Option, if any, the
Designated Securities, the Designated Expense Agreement and the Trust
Agreement and the consummation of the transactions contemplated herein
and therein will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Trust is a party or by
which such Trust is bound or to which any of the property or assets of
such Trust is subject, nor will such action result in any violation of
the provisions of the Certificate of Trust or Trust Agreement of such
Trust or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Trust or any
of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Designated
Securities and the Common Securities by such Trust or the consummation
by such Trust of the transactions contemplated by this Agreement, the
Pricing Agreement or any Over-allotment Option, the Designated
Securities, the Designated Expense Agreement or the Trust Agreement,
except (i) such as have been, or will have been, prior to each Time of
Delivery, obtained under the Act and the Trust Indenture Act and (ii)
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(n) The issuance by the Company of the Guarantees and the
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement, any Pricing Agreement, the Guarantees,
the Expense Agreements, the Subordinated Debentures, the Trust
Agreements and the Subordinated Indenture, and the consummation of the
transactions contemplated herein and therein will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any material indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor will
such action result in
7
any violation of the provisions of the Articles of Incorporation or
By-Laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company or any of its properties or any of its properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Guarantees or the Subordinated
Debentures or the consummation by the Company of the transactions
contemplated by this Agreement, any Pricing Agreement, the Guarantees,
the Expense Agreements, the Subordinated Debentures, the Trust
Agreements or the Subordinated Indenture, except (i) such as have
been, or will have been, prior to each Time of Delivery, obtained
under the Act or the Trust Indenture Act and (ii) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the issuance and sale by the Company of the Guarantees and the
Subordinated Debentures;
(o) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Designated
Trust, the Company or any of its subsidiaries is a party or of which
any of their properties is the subject, which, if determined adversely
to the Designated Trust, the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' equity
or results of operations of either the Designated Trust or the Company
and its subsidiaries taken as a whole; and, to the best of the
Designated Trust's and the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(p) None of the Designated Trust, the Company nor any of its
subsidiaries, as applicable, is in violation of the Trust Agreement for
the Designated Trust, the Certificate of Trust for the Designated
Trust, the Articles of Incorporation or By-Laws of the Company, or the
charter or by-laws of any of its subsidiaries, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, other than
any such violation or default that would not, individually or in the
aggregate, have a material adverse effect on or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of either the Designated Trust or the Company and
its subsidiaries taken as a whole;
(q) The Company and its subsidiaries possess such
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, except where the failure to possess
such certificates, authorities or permits, individually or in the
aggregate, would not have a material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries taken as a whole; and neither the Company
nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, individually
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or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries taken as a whole;
(r) The financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus present fairly in all material
respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the
consolidated results of their operations for the periods specified;
and, except as stated therein, such financial statements have been
prepared in conformity with generally accepted accounting principles in
the United States applied on a consistent basis;
(s) The statements set forth in (i) the Prospectus under the
captions "Description of Securities", "Description of Debt Securities",
"Description of Preferred Securities", "Description of Preferred
Securities Guarantees", "Description of Expense Agreements" and
"Relationship among Preferred Securities, Preferred Securities
Guarantees and Subordinated Debt Securities Held by Each Trust" and
(ii) in the Prospectus as amended or supplemented under the captions
"Description of Series __ QUIPS" and "Description of Series __ QUIDS",
insofar as they constitute a summary of the terms of the Securities,
the Subordinated Debentures, the Guarantees, the Expense Agreements and
the Company Agreements (including the Designated Securities, the
Designated Subordinated Debentures, the Designated Guarantee and the
Designated Expense Agreement) and (x) in the Prospectus under the
caption "Plan of Distribution" and (y) in the Prospectus as amended or
supplemented under the captions "Underwriting" and "Material United
States Federal Income Tax Considerations", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
in each case are accurate, complete and fair;
(t) Neither the Designated Trust nor the Company nor any of
its subsidiaries is or, after giving effect to the offering and sale of
the Securities, will be, an "investment company" or an entity
"controlled" by an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act");
(u) 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; and
(v) The Company has reviewed its operations and that of its
subsidiaries and any third parties with which the Company and its
subsidiaries taken as a whole have a material relationship, to evaluate
the extent to which the business or operations of the Company and its
subsidiaries taken as a whole will be affected by the Year 2000
Problem. As a result of such review, the Company does not believe that
the Year 2000 Problem will have a material adverse effect on the
general affairs, management, the current or future consolidated
financial position, business prospects, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole or
result in
9
any material loss or interference with the business or operations of
the Company and its subsidiaries taken as a whole. The "Year 2000
Problem" as used herein means any significant risk that computer
hardware or software used by the Company or any of its subsidiaries in
the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will not, in
the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000.
3. Upon the execution of the Pricing Agreement applicable to any Firm
Designated Securities and authorization by the Representatives of the release of
such Firm Designated Securities, the several Underwriters propose to offer such
Firm Designated Securities for sale upon the terms and conditions set forth in
the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement
applicable to any Designated Securities that the Designated Trust thereby grants
to the Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth therein, for the sole purpose of
covering over-allotments in the sale of the Firm Designated Securities. Any such
election to purchase Optional Designated Securities may be exercised by written
notice from the Representatives to the Designated Trust and the Company, given
within a period specified in the Pricing Agreement, setting forth the aggregate
number of Optional Designated Securities to be purchased and the date on which
such Optional Designated Securities are to be delivered, as determined by the
Representatives but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless the Representatives, the Designated
Trust and the Company otherwise agree in writing, earlier than or later than the
respective number of business days after the date of such notice set forth in
such Pricing Agreement.
The Number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Designated Trust and the Company have been advised by the Representatives have
been attributed to such Underwriter; provided that, if the Designated Trust and
the Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion of Optional
Designated Securities which the number of Firm Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of Optional
Designated Securities which the Underwriters elect to purchase.
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As compensation to the Underwriters of the Designated Securities for
their commitments hereunder and under the Pricing Agreement, and in view of the
fact that the proceeds of the sale of the Designated Securities will be used by
the Designated Trust to purchase the Designated Subordinated Debentures of the
Company, the Company agrees to pay at each Time of Delivery to the
Representatives, for the accounts of the several Underwriters, the amount set
forth in the Pricing Agreement per Designated Security for the Designated
Securities to be delivered at each Time of Delivery.
4. Certificates for the Firm Designated Securities and the Optional
Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in the form specified in the Trust
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Designated Trust and the Company, shall be delivered by or on behalf of the
Designated Trust to the Representatives for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer of Federal (same-day) funds to an account designated
by the Designated Trust, (i) with respect to the Firm Designated Securities, all
in the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives, the
Designated Trust and the Company may agree upon in writing, such time and place
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Designated Securities, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives,
the Designated Trust and the Company may agree upon in writing, such time and
date, if not the First Time of Delivery, being herein called the "Second Time of
Delivery." Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Designated Trust and the Company, jointly and severally, agree
with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the last
Time of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so
11
long as the delivery of a prospectus is required in connection with
the offering or sale of such Securities, and during such same period
to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Securities, of the suspension of the qualification of such
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus relating
to the Securities or suspending any such qualification, to promptly
use its commercially reasonable efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities or the Designated Subordinated Debentures for offering and
sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Designated Securities, provided that in connection
therewith neither the Designated Trust nor the Company shall be
required to (i) qualify as a foreign corporation, (ii) file a general
consent to service of process in any jurisdiction or (iii) comply with
any other requirement in connection with such qualification deemed by
the Company to be unduly burdensome;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of the Pricing Agreement for such
Designated Securities or such later time or date as agreed to by the
Designated Trust, the Company and the Representatives, and from time to
time, to furnish the Underwriters with copies of the Prospectus in New
York City as amended or supplemented in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Designated Securities or the Designated Subordinated
Debentures and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a
12
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) In the case of the Company, to make generally available to
its securityholders as soon as practicable, but in any event not later
than eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Designated Trust and the
Company by the Representatives and (ii) 30 days after the last Time of
Delivery for such Designated Securities, not to offer, sell, contract
to sell or otherwise dispose of any Securities, any other beneficial
interests in the assets of any Trust, or any preferred securities or
any other securities of any Trust or the Company, as the case may be,
that are substantially similar to such Designated Securities (including
any guarantee of such securities) or any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Securities, preferred securities or any such substantially
similar securities of any Trust or the Company, or any debt securities
of the Company (other than the Designated Subordinated Debentures)
which mature more than one year after such Time of Delivery and which
are substantially similar to such Designated Securities, without the
prior written consent of the Representatives;
(f) In the case of the Company, to issue the Designated
Guarantee concurrently with the issue and sale of the Designated
Securities as contemplated herein or in the Pricing Agreement;
(g) To use its best efforts to list within 30 days following
the First Time of Delivery, subject to notice of issuance, the
Designated Securities on the New York Stock Exchange and, if the
Company elects to dissolve the Designated Trust and to distribute the
Designated Subordinated Debentures to the holders of the Designated
Securities in liquidation of the Designated Trust, to use its best
efforts to list the Designated Subordinated Debentures on the New York
Stock Exchange prior to such distribution; and
(h) If the Designated Trust and the Company elect to rely upon
Rule 462(b), the Designated Trust and the Company shall file a Rule
462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this
Agreement, and the Designated Trust and the Company shall at the time
of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
13
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities, the Guarantees and the
Subordinated Debentures under the Act and all other expenses in connection with
the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, any Pricing Agreement, any Company Agreement
(including any amendment or supplement to the Subordinated Indenture), the
Securities, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky and Legal Investment
Surveys; (iv) any fees charged by securities rating services for rating the
Securities and the Subordinated Debentures; (v) any filing fees incident to, and
the reasonable fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities and the issuance of the
Guarantees and the Subordinated Debentures; (vi) the cost of preparing the
Securities and the Subordinated Debentures; (vii) the fees and expenses of any
Indenture Trustee, Guarantee Trustee or other trustee (including any trustee
under any Trust Agreement), and any agent of any such trustee and the reasonable
fees and disbursements of counsel for any such trustee in connection with any
Trust Agreement, the Subordinated Indenture, any Guarantee, the Securities and
the Subordinated Debentures; (viii) the cost of qualifying the Securities and
the Subordinated Debentures with The Depository Trust Company; (ix) any fees and
expenses in connection with listing the Securities and the Subordinated
Debentures and the cost of registering the Securities under Section 12 of the
Exchange Act; and (x) all other costs and expenses incident to the performance
of its obligations hereunder and under any Over-allotment Options which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Designated Trust and
the Company in or incorporated by reference in the Pricing Agreement relating to
such Designated Securities are, at and as of each Time of Delivery for such
Designated Securities, true and correct, the condition that the Designated Trust
and the Company shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
14
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Designated Trust and
the Company have elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such written opinion or opinions, dated each Time of
Delivery for such Designated Securities, with respect to the
Registration Statement and the Prospectus as amended or supplemented,
as well as such other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers
and information as they may reasonably request to enable them to pass
upon such matters;
(c) Counsel for the Company and the Designated Trust
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion or opinions, dated each Time of
Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, (i) to the effect set forth in
Annex III hereto and (ii) to the effect that
(A) Each of the Subordinated Indenture and the
Designated Expense Agreement constitutes a legally valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms;
(B) The Designated Subordinated Debentures, when
executed and authenticated in accordance with the terms of the
Subordinated Indenture and delivered to and paid for by the
Trust in accordance with the terms of the Note Purchase
Agreement, dated as of July 21, 1999, between the Company and
the Trust, will constitute legally valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, and are entitled to the benefits
of the Subordinated Indenture;
(C) The Designated Guarantee, upon due execution,
authentication and delivery of the Designated Securities and
upon payment therefor in accordance with the terms of the
Underwriting Agreement, will constitute a legally valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms;
(D) The Registration Statement and the Prospectus as
amended or supplemented (in each case, excluding the documents
incorporated by reference
15
therein) comply as to form in all material respects with the
requirements for registration statements on Form S-3 under the
Act, and the requirements under the Trust Indenture Act and
the rules and regulations of the Commission thereunder; it
being understood, however, that such counsel expresses no
opinion with respect to the financial statements, schedules or
other financial data included or incorporated by reference in,
or omitted from, the Registration Statement or the Prospectus
as amended or supplemented or with respect to the Form T-1's.
In passing upon the compliance as to form of the Registration
Statement and the Prospectus as amended or supplemented (in
each case, excluding the documents incorporated by reference
therein), such counsel has assumed that the statements made
and incorporated by reference therein are correct and
complete; and
(E) Such counsel has participated in telephone
conferences with officers and other representatives of the
Company, and representatives of the Underwriters, at which the
contents of the Registration Statement and the Prospectus as
amended or supplemented and related matters were discussed
and, although such counsel is not passing upon, and does not
assume any responsibility for, the accuracy, completeness or
fairness of the statements contained or incorporated by
reference in the Registration Statement and the Prospectus as
amended or supplemented and has not made any independent check
or verification thereof, during the course of such
participation, no facts came to such counsel's attention that
caused them to believe that the Registration Statement, at the
time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus as amended or
supplemented (including the documents incorporated by
reference), as of its date or as of the date of such opinion,
contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under
which they were made, not misleading; it being understood that
such counsel expresses no belief with respect to the financial
statements or other financial data included or incorporated by
reference in, or omitted from, the Registration Statement or
the Prospectus as amended or supplemented or with respect to
the Form T-1's;
(d) Special Delaware counsel to the Designated Trust and the
Company satisfactory to the Representatives shall have furnished to the
Representatives, the Company and the Designated Trust their written
opinion, dated the respective Time of Delivery, in form and substance
satisfactory to the Representatives, to the effect that
(i) The Designated Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act, and all filings required
under the laws of the State of Delaware with respect to the
creation and valid existence of the Designated Trust as a
business trust have been made;
16
(ii) Under the Delaware Business Trust Act and the
Trust Agreement, the Designated Trust has the trust power and
authority to own property and conduct its business, all as
described in the Prospectus as amended or supplemented;
(iii) The Trust Agreement constitutes a valid and
binding obligation of the Company and the Trustees, and is
enforceable against the Company and the Trustees, in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, receivership, liquidation, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights, to general equity principles,
including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding
in equity or at law), and to the effect of applicable public
policy on the enforceability of provisions relating to
indemnification or contribution;
(iv) Under the Delaware Business Trust Act and the
Trust Agreement, the Designated Trust has the requisite trust
power and authority to (a) execute, deliver and perform its
obligations under this Agreement and the Pricing Agreement and
(b) issue and perform its obligations under the Designated
Securities and the Common Securities of the Designated Trust;
(v) Under the Delaware Business Trust Act and the
Trust Agreement, the execution and delivery by the Designated
Trust of this Agreement and the Pricing Agreement, and the
performance by the Designated Trust of its obligations
hereunder and thereunder, have been duly authorized by the
requisite trust action on the part of the Designated Trust;
(vi) The Designated Securities have been duly
authorized by the Trust Agreement and are duly and validly
issued and, subject to the qualifications set forth therein,
fully paid and non-assessable beneficial interests in the
Designated Trust and are entitled to the benefits provided by
the Trust Agreement; the holders of the Designated Securities,
as beneficial owners of the Designated Trust, will be entitled
to the same limitation of personal liability extended to
stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware;
provided that such counsel may note that the holders of the
Designated Securities may be obligated, pursuant to the Trust
Agreement, to (a) provide indemnity and/or security in
connection with and pay taxes or governmental charges arising
from transfers or exchanges of certificates evidencing the
Designated Securities and the issuance of replacement
certificates and (b) provide security and indemnity in
connection with requests of or directions to the Property
Trustee (as defined in the Trust Agreement) to exercise its
rights and remedies under the Trust Agreement;
17
(vii) The Common Securities of the Designated Trust
have been duly authorized by the Trust Agreement and are
validly issued and represent beneficial interests in the
Designated Trust;
(viii) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Securities and
the Common Securities of the Designated Trust is not subject
to preemptive rights;
(ix) The issuance and sale by the Designated Trust of
Designated Securities and the Common Securities of the
Designated Trust, the execution, delivery and performance by
the Designated Trust of this Agreement and the Pricing
Agreement, the consummation by the Designated Trust of the
transactions contemplated hereby and thereby and compliance by
the Designated Trust with its obligations hereunder and
thereunder will not violate (a) any of the provisions of the
Certificate of Trust of the Designated Trust or the Trust
Agreement, or (b) and applicable Delaware law or
administrative regulation;
(x) Assuming that the Designated Trust derives no
income from or connected with sources within the State of
Delaware and has no assets, activities (other than maintaining
the Delaware Trustee (as defined in the Trust Agreement) and
the filing of documents with the Secretary of State of the
State of Delaware) or employees in the State of Delaware, no
authorization, approval, consent or order of any Delaware
court or governmental authority or agency is required to be
obtained by the Designated Trust solely in connection with the
issuance and sale of the Designated Securities and the Common
Securities of the Designated Trust. (In rendering the opinion
expressed in this paragraph (x), such counsel need express no
opinion concerning the securities laws of the State of
Delaware); and
(xi) Assuming that the Designated Trust derives no
income from or connected with sources within the State of
Delaware and has no assets, activities (other than maintaining
the Delaware Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in
the State of Delaware and assuming that the Designated Trust
is treated as a grantor trust for Federal income tax purposes,
the holders of the Designated Securities (other than those
holders who reside or are domiciled in the State of Delaware)
will have no liability for income taxes imposed by the State
of Delaware solely as a result of their participation in the
Designated Trust, and the Designated Trust will not be liable
for any income tax imposed by the State of Delaware.
(e) Tax counsel for the Designated Trust and the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated the respective Time of
Delivery, in form and substance satisfactory to the Representatives, to
the effect that such firm confirms its opinion set forth in the
Prospectus as amended or supplemented under the caption "Material
United States Federal Income Tax Considerations";
18
(f) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at each Time of Delivery
for such Designated Securities, the independent accountants of the
Company who have certified the financial statements of the Company and
its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the
date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(g) (i) Neither the Designated Trust nor the Company and its
subsidiaries (other than the Designated Trust) taken as a whole shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Securities, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities there shall not have been any change in the
capital stock or long-term debt of the Designated Trust or the Company
and its subsidiaries (other than the Designated Trust) taken as a whole
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Designated Trust
or the Company and its subsidiaries (other than the Designated Trust)
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Securities, the effect of which,
in any such case described in clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of
the Firm Designated Securities or Optional Designated Securities or
both on the terms and in the manner contemplated in the Prospectus as
first amended or supplemented relating to the Designated Securities;
(h) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has
19
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(i) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by Federal or New York State or State of
California authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Firm Designated Securities
or Optional Designated Securities or both on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(j) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement or
such later date as agreed to among the Designated Trust, the Company
and the Representatives; and
(k) The Designated Trust and the Company shall have furnished
or caused to be furnished to the Representatives at each Time of
Delivery for the Designated Securities certificates of officers of the
Designated Trust and the Company satisfactory to the Representatives as
to the accuracy of the representations and warranties of the Designated
Trust and the Company herein at and as of such Time of Delivery, as to
the performance by the Designated Trust and the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (g) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Designated Trust and the Company, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred; provided, however, that neither the Designated Trust nor the Company
shall be liable in any such case to
20
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Designated Trust and the Company by any
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Designated
Trust and the Company against any losses, claims, damages or liabilities to
which the Designated Trust may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Designated
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Designated Securities, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Designated Trust and the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Designated Trust and the
Company for any legal or other expenses reasonably incurred by the Company or
the Designated Trust in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the
21
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Designated Trust and the Company on the one
hand and the Underwriters of the Designated Securities on the other from the
offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Designated Trust and the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Designated Trust
and the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Designated Trust and the Company
bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Designated Trust and the Company on the one hand or
such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Designated Trust, the Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public
22
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Designated Trust and the Company under this
Section 8 shall be in addition to any liability which the Designated Trust or
the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Designated Trust or the Company and to each person,
if any, who controls the Designated Trust or the Company within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Firm Designated Securities or Optional Designated Securities which it has
agreed to purchase under the Pricing Agreement relating to such Designated
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such Firm
Designated Securities or Optional Designated Securities, as the case may be,
then the Designated Trust and the Company shall be entitled to a further period
of thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Designated Trust and the Company that they have so
arranged for the purchase of such Designated Securities, or the Designated Trust
and the Company notify the Representatives that it has so arranged for the
purchase of such Designated Securities, the Representatives or the Designated
Trust and the Company shall have the right to postpone a Time of Delivery for
such Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Designated Trust and the Company agree to
file promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust and the Company as provided in subsection (a) above, the
aggregate number of such Designated Securities which remains
23
unpurchased does not exceed one-eleventh of the aggregate number of the Firm
Designated Securities or Optional Designated Securities, as the case may be, to
be purchased at the respective Time of Delivery, then the Designated Trust shall
have the right to require each non-defaulting Underwriter to purchase the number
of Firm Designated Securities or Optional Designated Securities, as the case may
be, which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Firm Designated Securities or Optional Designated Securities, as the case may
be, which such Underwriter agreed to purchase under such Pricing Agreement) of
the Firm Designated Securities or Optional Designated Securities, as the case
may be, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of a defaulting Underwriter or Underwriters by the Representatives and the
Designated Trust and the Company as provided in subsection (a) above, the
aggregate number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number of the Firm Designated Securities or Optional Designated
Securities, as the case may be, to be purchased at the respective Time of
Delivery, as referred to in subsection (b) above, or if the Designated Trust and
the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Designated Securities or
Optional Designated Securities, as the case may be, of a defaulting Underwriter
or Underwriters, then the Pricing Agreement relating to such Firm Designated
Securities or the Over-allotment Option relating to such Optional designated
Securities, as the case may be, shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Designated Trust or the
Company, except for the expenses to be borne by the Designated Trust and the
Company and the Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Designated Trust and the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Designated Trust or the Company, or any officer or director
or controlling person of the Designated Trust or the Company, and shall survive
delivery of and payment for the Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Designated Trust nor the
Company shall then be under any liability to any Underwriter with respect to the
Firm Designated Securities or Optional Designated Securities with respect to
which such Pricing Agreement shall have been terminated except as provided in
Sections 6 and 8 hereof; but, if for any other reason Designated Securities
24
are not delivered by or on behalf of the Designated Trust or the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Designated Trust and the Company
shall then be under no further liability to any Underwriter with respect to such
Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters
of Designated Securities shall act on behalf of each of such Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Designated Trust and the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, each Designated Trust, the
Company and, to the extent provided in Sections 8 and 10 hereof, the officers
and directors of each Designated Trust, the Company and each person who controls
any Designated Trust or the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
25
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
Very truly yours,
EDISON INTERNATIONAL
By: .........................................
Name:
Title:
EIX TRUST I
By: Edison International, as Depositor
By: .........................................
Name:
Title:
EIX TRUST II
By: Edison International, as Depositor
By: .........................................
Name:
Title:
EIX TRUST III
By: Edison International, as Depositor
By: .........................................
Name:
Title:
26
Pricing Agreement
[Names of Representatives,]
As Representatives of the several
Underwriters named in Schedule I hereto
[Address]
------------, ----
Ladies and Gentlemen:
EIX Trust [I] [II] [III], a statutory business trust formed under the
laws of the State of Delaware (the "Designated Trust"), and Edison
International, a California corporation (the "Company"), propose, subject to the
terms and conditions stated herein and in the Underwriting Agreement, dated July
[___], 1999 (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities" consisting of Firm
Designated Securities and any Optional Designated Securities the Underwriters
may elect to purchase). The principal asset of the Designated Trust consists of
debt securities of the Company ("Subordinated Debentures"), as specified in
Schedule II to this Agreement. The Designated Securities will be guaranteed by
the Company to the extent set forth in this Agreement with respect to such
Designated Securities (the "Guarantee"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
1
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Designated Securities, as provided below, the Designated Trust agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Designated Trust at the
purchase price to the Underwriters set forth in Schedule II hereto that portion
of the number of Optional Designated Securities as to which such election shall
have been exercised.
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of covering
over-allotments in the sale of the Firm Designated Securities. Any such election
to purchase Optional Designated Securities may be exercised by written notice
from the Representatives to the Designated Trust and the Company given within a
period of 30 calendar days after the date of this Pricing Agreement, setting
forth the aggregate number of Optional Designated Securities to be purchased and
the date on which such Optional Designated Securities are to be delivered, as
determined by the Representatives, but in no event earlier than the First Time
of Delivery or, unless the Representatives and the Company and the Designated
Trust otherwise agree in writing, no earlier than ten or later than ten business
days after the date of such notice.
2
If the foregoing is in accordance with your understanding, please sign
and return to us [___] counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Designated Trust and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Designated Trust and the Company for examination
upon request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
EDISON INTERNATIONAL
By: ........................................
Name:
Title:
EIX TRUST [I] [II] [III]
By: Edison International, as Depositor
By: ........................................
Name:
Title:
Accepted as of the date hereof:
[Names of Representatives]
By:................................
3
SCHEDULE I
Number of Maximum Numb
Firm Designated of Optional Designated
Securities Securities Which
Underwriter to be Purchased May be Purchased
[Names of Representatives]..........
[Names of other Underwriters].......
Total.............
=============== ====================
4
SCHEDULE II
Designated Trust:
EIX Trust [I] [II] [III]
Title of Designated Securities:
[____ % Cumulative Quarterly Income Preferred Securities, Series ___ (QUIPSSM)]
(Liquidation Amount $25 per Preferred Security)
Aggregate liquidation amount:
Firm Designated Securities: $_________________
Optional Designated Securities: [up to $_______________]
[none]
Price to public:
_____% of the liquidation amount of the Designated Securities
Purchase price to Underwriters:
_____% of the liquidation amount of the Designated Securities
Underwriters' compensation:
As compensation to the Underwriters for their commitments hereunder, and
in view of the fact that the proceeds of the sale of the Designated
Securities will be used by the Designated Trust to purchase the
Subordinated Debentures of the Company, the Company hereby agrees to pay
at each Time of Delivery to [the Representatives], for the accounts of
the several Underwriters, an amount equal to $ ___________ per Designated
Security for the Designated Securities to be delivered at each Time of
Delivery.
Specified funds for payment of purchase price:
Federal (same day) Funds
Accountants' letter to be delivered on date of Pricing Agreement:
Yes
5
Trust Agreement:
Amended and Restated Trust Agreement dated as of_______________, ____
among the Company, as Depositor, The Chase Manhattan Bank, as Property
Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, the Regular
Trustees named therein and the several Holders of Trust Securities
Designated Guarantee:
Guarantee Agreement dated as of _____________, ____ between the Company
and The Chase Manhattan Bank, as Trustee
Designated Subordinated Debentures:
[$_____________ aggregate principal amount of ___% Subordinated Deferrable
Interest Notes, Series ___, due _______________]
Maturity:
______________, _____ [(subject to (i) extension to a date not later than
____________, _____ and (ii) shortening to a date not earlier than
______________, _____)]
Interest rate:
-----%
Interest payment dates:
______________________ of each year, commencing on __________, _____
Extension period:
[_______ quarters] [________ semi-annual periods]
Redemption provisions:
[Set forth in Section ____ of the Trust Agreement]
Sinking fund provisions:
No sinking fund provisions
6
Exchange for Designated Securities:
[The Subordinated Debentures may be delivered in exchange for the
Designated Securities as provided in the Trust Agreement]
Time of Delivery:
________ a.m., New York City time
-----------, -----
Closing location for delivery of Designated Securities:
Names and addresses of Representatives:
[Representatives]
[Address for Notices]
7
ANNEX II
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Designated Trust and the Company and its subsidiaries
within the meaning of the Act and the applicable rules and regulations
adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) audited or
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related rules and
regulations; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which [have
been separately furnished to the representative or representatives of
the Underwriters (the "Representatives")] [are attached to such
letters];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's Quarterly
Reports on Form 10-Q incorporated by reference into the Prospectus, as
indicated in their reports thereon, copies of which [have been
separately furnished to the Representatives][are attached to such
letters]; and on the basis of specified procedures including inquiries
of officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
rules and regulations, nothing came to their attention that caused them
to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years included or incorporated by reference in the
Company's Annual Reports on Form 10-K for such fiscal years;
1
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the published rules and regulations
adopted by the Commission, or (ii) any material modifications
should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus or included in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus for them
to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
2
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the rules and regulations adopted by the Commission
thereunder or the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by
the Representatives or in documents incorporated by reference in the
Prospectus specified by the Representatives, and have compared certain
of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found
them to be in agreement.
3
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at each Time of Delivery for
such Designated Securities.
4
ANNEX III
July 26, 1999
To the Representatives named on
Exhibit A hereto of the Underwriters
named on Exhibit B hereto
The Chase Manhattan Bank,
as Property Trustee, Indenture Trustee
and Guarantee Trustee
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Chase Manhattan Bank Delaware,
as Delaware Trustee
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Re: Issuance of $500,000,000 Aggregate Liquidation Amount of
7.875% Cumulative Quarterly Income Preferred Securities, Series A
Ladies and Gentlemen:
This opinion is rendered to you in compliance with the provisions of
subsection (c) of Section 7 of the Underwriting Agreement dated as of July 21,
1999 (the "Underwriting Agreement") among Edison International (the "Company"),
EIX Trust I ("Trust I"), EIX Trust II and EIX Trust III, each a statutory
business trust formed under the laws of the State of Delaware (each a "Trust,"
and collectively, the "Trusts") and the Representatives (the "Representatives")
of the several Underwriters named in the Pricing Agreement dated as of July 21,
1999 (the "Pricing Agreement") among the Company, Trust I and the
Representatives. The Underwriting Agreement and the Pricing Agreement provide
for the sale to you of $500,000,000 aggregate principal amount of 7.875%
Cumulative Quarterly Income Preferred Securities, Series A, issued by Trust I
(the "QUIPS"). The QUIPS represent undivided beneficial interests in the assets
of Trust I, which generally comprise a corresponding principal amount of 7.875%
Subordinated Deferrable Interest Notes, Series A (the "QUIDS") issued by the
Company, under a Subordinated Indenture, as amended (the "Indenture"), entered
into by and between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee"). The QUIPS and QUIDS have been registered under the Securities Act of
1933, as amended (the "Act"), on a Registration Statement on Form S-3 filed with
the Securities and Exchange Commission (the
"Commission") on July 2, 1999 (File No. 333-82293), as amended by Amendment
No. 1 filed with the Commission on July 13, 1999, and Amendment No. 2 filed with
the Commission on July 15, 1999 (as so amended, including the documents
incorporated by reference therein, the "Registration Statement"). The QUIDS and
QUIPS are to be sold as described in the Registration Statement and the
prospectus and prospectus supplement relating to the QUIDS and QUIPS.
Capitalized terms used herein without definition have the meanings ascribed to
them in the Underwriting Agreement, and, in the case of terms not used in the
Underwriting Agreement, the meanings ascribed to them in the Indenture.
I am an Assistant General Counsel and Assistant Secretary of the Company.
In rendering the opinions expressed below, I or attorneys acting under my
supervision have (a) examined and relied on originals, or copies certified or
otherwise identified as true copies of the originals, of such records,
documents, certificates and other instruments, (b) made such investigations of
law and fact and (c) obtained and relied upon such certificates as to factual
matters of public officials, officers or employees of the Company and other
persons, as I have deemed appropriate to enable me to give the opinions
expressed below. I believe that both you and I are justified in relying upon
such certificates.
I am opining herein as to the effect on the subject transactions only of
the federal laws of the United States and the internal laws of the State of
California, and I express no opinion with respect to the applicability thereto,
or the effect thereon, of the laws of any other jurisdiction, or as to any
matters of municipal law or the laws of any local agencies within any state.
I am familiar with and have examined the Registration Statement, including
the prospectus dated July 21, 1999 (the "Prospectus") and the prospectus
supplement dated July 21, 1999 (the "Prospectus Supplement," and together with
the Prospectus, the "Final Prospectus"), which Prospectus and Prospectus
Supplement incorporate by reference certain documents filed with the Commission.
Based on the foregoing and subject to the qualifications set forth herein,
it is my opinion that, as of the date hereof:
1. Each of the Company, Southern California Edison Company, a California
corporation, Edison Mission Energy, a California corporation, and Edison
Capital, a California corporation, has been duly incorporated and is validly
existing and in good standing under the laws of the State of California, with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the Final
Prospectus.
2. The Company has an authorized capitalization as set forth in the Final
Prospectus and all of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable.
3. To the best of my knowledge, there is no pending or threatened action,
suit or proceeding before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries (including Trust
I) of a character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus.
4. Each of the Underwriting Agreement and the Pricing Agreement has been
duly authorized, executed and delivered by Trust I and the Company.
5. Each of the Trust Agreement, the Indenture, the Designated Expense
Agreement and the Designated Guarantee has been duly authorized, executed and
delivered by the Company, and each of the Indenture, the Designated Expense
Agreement and the Designated Guarantee constitutes a legally valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
6. Each of the Trust Agreement, the Indenture and the Designated Guarantee
has been duly qualified under the Trust Indenture Act.
7. The QUIDS have been duly authorized, executed, issued and delivered by
the Company and constitute the legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, and are
entitled to the benefits provided by the Indenture.
8. The issuance by the Company of the Designated Guarantee and the QUIDS,
the issuance and sale by Trust I of the QUIPS, the compliance by the Company
with the provisions of the Underwriting Agreement, the Pricing Agreement and the
Company Agreements, the compliance by Trust I with the provisions of the
Underwriting Agreement, the Pricing Agreement and the Designated Securities and
the consummation of the transactions therein contemplated will not: (a) to the
best of my knowledge violate any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its properties or Trust I, (b) violate provisions of the Articles of
Incorporation or Bylaws of the Company, (c) result in the breach of or a default
under any material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to me to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the material property or assets of the Company or any
of its subsidiaries is subject, or (d) require any consents, approvals,
authorizations, registrations, declarations or filings by the Company, except
(i) such as have been obtained under the Act and the Trust Indenture Act and
(ii) such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the QUIPS by the Underwriters
or the issuance of the Designated Guarantee and QUIDS by the Company.
9. The statements set forth in (i) the Prospectus under the captions
"Description of Securities," "Description of Debt Securities," Description of
Preferred Securities," "Description of Preferred Securities Guarantees,"
"Description of Expense Agreements" and "Relationship Among Preferred
Securities, Preferred Securities Guarantees and
Subordinated Debt Securities Held by Each Trust" and (ii) in the Final
Prospectus under the captions "Description of Series A QUIDS" and "Description
of Series A QUIPS," insofar as they constitute a summary of the terms of the
QUIPS, the Trust Agreement, the QUIDS, the Indenture, the Designated Guarantee
and the Designated Expense Agreement and (y) in the Prospectus under the caption
"Plan of Distribution" and (z) in the Final Prospectus under the caption
"Underwriting," insofar as they purport to describe the provisions of the laws
and documents referred to therein, in each case are accurate and complete in all
material respects. To the best of my knowledge, there are no statutes or legal
or governmental proceedings required to be described in the Final Prospectus
that are not described as required, or contracts or documents of a character
required to be described in the Registration Statement or Prospectus (or
required to be filed under the Exchange Act, if upon such filing they would be
incorporated by reference in the Prospectus) or to be filed as exhibits to the
Registration Statement that are not described and filed as required.
10. The Registration Statement and the Final Prospectus comply as to form
in all material respects with the requirements for registration statements on
Form S-3 under the Act and the requirements under the Trust Indenture Act and
the rules and regulations of the Commission thereunder; it being understood,
however, that I express no opinion with respect to the financial statements,
schedules or other financial data included or incorporated by reference in, or
omitted from, the Registration Statement or the Final Prospectus or with respect
to any Form T-1. In passing upon the compliance as to form of the Registration
Statement and the Final Prospectus, I have assumed that the statements made and
incorporated by reference therein are correct and complete.
11. Neither the Company nor Trust I is an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act.
12. Neither the Company nor any of the Significant Subsidiaries is in
violation of its Bylaws or Articles of Incorporation, except for such violations
that would not have a material adverse effect on the Company or such Significant
Subsidiary, as applicable, or the transactions contemplated by the Company
Agreements.
In addition, I have participated in telephonic conferences with officers
and other representatives of the Company, and your representatives, at which the
contents of the Registration Statement and the Final Prospectus and related
matters were discussed and, although I am not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of the statements
contained or incorporated by reference in the Registration Statement and the
Final Prospectus and have not made any independent check or verification
thereof, during the course of such participation, no facts came to my attention
that caused me to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Final Prospectus (including the
documents incorporated by reference), as of its date or as of the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; it being
understood that I express no belief with respect to the financial statements,
schedules and other financial data included or incorporated by reference in, or
omitted from, the Registration Statement or the Final Prospectus or with respect
to any Form T-1.
The opinions rendered in paragraphs 5 and 7, relating to the enforceability
of the Indenture, the Designated Expense Agreement, the Designated Guarantee and
the QUIDS, respectively, are subject to the following exceptions, limitations
and qualifications: (i) the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors generally; (ii) the effect of general principles of
equity, including without limitation concepts of materiality, reasonableness,
good faith and fair dealing and possible unavailability of specific performance
or injunctive relief, regardless of whether considered in a proceeding in equity
or at law; (iii) certain rights, remedies and waivers contained in the
Indenture, the Designated Expense Agreement, the Designated Guarantee and the
QUIDS may be limited or rendered ineffective by applicable California laws or
judicial decisions governing such provisions, but such laws or judicial
decisions do not render the Indenture, the Designated Expense Agreement, the
Designated Guarantee and the QUIDS invalid or unenforceable as a whole; (iv) the
unenforceability under certain circumstances under law or court decisions of
provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to
public policy; (v) the possible unenforceability of waivers of rights or
defenses, as to which I express no opinion; (vi) the unenforceability under
certain circumstances, under California or federal law or court decisions, of
provisions expressly or by implication waiving broadly or vaguely stated rights,
unknown future rights, defenses to obligations or rights granted by law, where
such waivers are against public policy or prohibited by law; (vii) the
unenforceability under certain circumstances of provisions to the effect that
rights or remedies are not exclusive, that every right or remedy is cumulative
and may be exercised in addition to or with any other right or remedy, that
election of a particular remedy or remedies does not preclude recourse to one or
more other remedies, that any right or remedy may be exercised without notice,
or that failure to exercise or delay in exercising rights or remedies will not
operate as a waiver of any such right or remedy; and (viii) the effect of
California law, which provides that a court may refuse to enforce, or may limit
the application of, a contract or any clause thereof which the court finds as a
matter of law to have been unconscionable at the time it was made or contrary to
public policy.
To the extent that the obligations of the Company under the Company
Agreements may be dependent upon such matters, I assume for purposes of this
opinion that the parties to each of the Company Agreements (other than the
Company) is duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization; that each of the Trustee, the Property
Trustee, the Delaware Trustee and the Guarantee Trustee is duly qualified to
engage in the activities contemplated by each Company Agreement to which it is a
party; that each of the Company Agreements has been duly authorized, executed
and delivered by the
parties thereto (other than the Company) and constitutes a legally valid
and binding obligation of the parties thereto (other than the Company)
enforceable against such parties in accordance with its terms; and each party
(other than the Company) to the Company Agreements is in compliance generally
under each Company Agreement to which it is a party and with all applicable laws
and regulations; and that each party to the Company Agreements (other than the
Company) has the requisite organizational and legal power and authority to
perform its obligations under each Company Agreement to which it is a party.
This opinion is rendered only to you as Representatives of the several
Underwriters under the Underwriting Agreement and the Pricing Agreement and is
solely for the benefit of the Underwriters in connection with the transactions
covered hereby. This opinion may not be relied upon by you for any other
purpose, or furnished to, quoted to, or relied upon by any other person, firm or
corporation for any purpose, without my prior written consent.
Very truly yours,
Xxxxxxx X. Xxxxxxx
KSS:bhs:LW992040044
A-1
EXHIBIT A
Representatives
Xxxxxxx, Sachs & Co.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney Inc.
EXHIBIT B
Underwriters
Xxxxxxx, Xxxxx & Co.
X.X. Xxxxxxx & Sons, Inc.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
Prudential Securities Incorporated
Xxxxxxx Xxxxx Barney Inc.
ABN AMRO Incorporated
Banc of America Securities LLC
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
Deutsche Bank Securities Inc.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
EVEREN Securities, Inc.
X.X. Xxxxxx Securities Inc.
Xxxxxxx Xxxxxx & Co., Inc.
XX Xxxxx Securities Corporation
Advest, Inc.
Xxxxxx X. Xxxxx & Co. Incorporated
BB&T Capital Markets, A Division of Xxxxx & Xxxxxxxxxxxx, Inc.
Xxxxxxxx & Partners, L.P.
J.C. Bradford & Co.
Xxxxxxx, Xxxxxx & Co.
Xxxx Xxxxxxxx Xxxxxxx, a division of Xxxx Xxxxxxxx Incorporated
Xxxxxxxxxx & Co. Inc.
Fifth Third Securities, Inc.
First Albany Corporation
First Union Capital Markets Corp.
Gruntal & Co., L.L.C.
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc.
Xxxxxx Xxxxxxxxxx Xxxxx Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
McDonald Investments Inc., A KeyCorp Company XxXxxx, Xxxxx & Co., Inc.
Xxxxxx Xxxxxx & Company, Inc.
Olde Discount Corporation
Xxxxxx/Xxxxxx Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
The Xxxxxxxx-Xxxxxxxx Company, LLC
XXXXX CAPITAL MARKETS, A Division of BANC ONE CAPITAL MARKETS, Inc.
Sterne, Agee & Xxxxx, Inc.
Sutro & Co. Incorporated
TD Securities (USA) Inc.
Xxxxxx Xxxxxxx Xxxxxx Gull
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxxxxxx Capital Partners, L.P.
Wachovia Securities, Inc.
Wedbush Xxxxxx Securities Inc.
The Xxxxxxxx Capital Group, L.P.
