EXHIBIT 4.4
FORM OF
GUARANTEE AGREEMENT
Between
SEMPRA ENERGY
(as Guarantor)
and
THE BANK OF NEW YORK
(as Trustee)
dated as of
February 21, 2000
CROSS-REFERENCE TABLE*
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Section of Trust Indenture Section of
Act of 1939, as amended Guarantee Agreement
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310(a)......................................4.1(a)
310(b)......................................4.1(c), 2.8
310(c)......................................Inapplicable
311(a)......................................2.2(b)
311(b)......................................2.2(b)
311(c)......................................Inapplicable
312(a)......................................2.2(a)
312(b)......................................2.2(b)
313.........................................2.3
314(a)......................................2.4
314(b)......................................Inapplicable
314(c)......................................2.5
314(d)......................................Inapplicable
314(e)......................................1.1, 2.5, 3.2
314(f)......................................2.1, 3.2
315(a)......................................3.1 (d)
315(b)......................................2.7
315(c)......................................3.1
315(d)......................................3.1(d)
316(a)......................................1.1, 2.6, 5.4
316(b)......................................5.3
316(c)......................................8.2
317(a)......................................Inapplicable
317(b)......................................Inapplicable
318(a)......................................2.1(b)
318(b)......................................2.1
318(c)......................................2.1(a)
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* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
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ARTICLE I. DEFINITIONS........................................................................................................... 1
Section 1.1 Definitions............................................................................................. 1
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ARTICLE II. TRUST INDENTURE ACT.................................................................................................. 4
Section 2.1 Trust Indenture Act; Application........................................................................ 4
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(a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are
required to be part of this Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions........................................................................................ 4
(b) If and to the extent that any provision of this Guarantee Agreement limits, qualifies or
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture
Act, such imposed duties shall control............................................................................. 4
Section 2.2 List of Holders; Preferential Claims.................................................................... 4
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(a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a) not later
than 15 days after each of ________, ________, _______ and ________ (each such date a "Regular Record Date")
of each year, a list, in such form as the Guarantee Trustee may reasonably require, containing all the
information in the possession or control of the Guarantor, as to of the names and addresses of the Holders
("List of Holders") as of the preceding respective Regular Record Date, and (b) at such other times as the
Guarantee Trustee may request in writing, within 30 days after the receipt by the Guarantor of any such
request, a list of similar form and content as of a date not more than 15 days prior to the time such list
is furnished. The Guarantee Trustee shall preserve, in as current a form as is reasonably practicable,
all information contained in Lists of Holders given to it, provided that the Guarantee Trustee may destroy
any List of Holders previously given to it on receipt of a new List of Holders..................................... 4
(b) The Guarantee Trustee shall comply with its obligations under Section 311(a), Section 31l(b)
and Section 312(b) of the Trust Indenture Act...................................................................... 4
Section 2.3 Reports by the Guarantee Trustee........................................................................ 4
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Section 2.4 Periodic Reports to the Guarantee Trustee............................................................... 4
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Section 2.5 Evidence of Compliance with Conditions Precedent........................................................ 5
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Section 2.6 Events of Default; Waiver............................................................................... 5
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(a) Event of Default; Notice. The Guarantee Trustee shall, within 90 days after the occurrence of
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an Event of Default actually known to a Responsible Officer of the Guarantee Trustee, transmit
by mail, first class postage prepaid, to the Holders, notices of all such defaults unless such
defaults have been cured before the giving of such notice (the term "defaults" for the purposes
of this Section 2.6(a) being hereby defined to be an Event of Default as, not including any
periods of grace provided for therein and irrespective of the giving of any notice provided
therein); provided, that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Guarantee Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders.................................................................... 5
Section 2.7 Conflicting Interests................................................................................. 5
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ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE................................................................. 5
Section 3.1 Powers and Duties of the Guarantee Trustee............................................................ 5
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(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the Holders,
and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except a
Holder exercising his or her rights pursuant to Section 5.4(iv) or to a Successor Guarantee
Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such Successor
Guarantee Trustee of its appointment hereunder, and such vesting and cessation of title shall
be effective whether or not conveying documents have been executed and delivered pursuant to
the appointment of such Successor Guarantee Trustee............................................................... 6
(b) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce this
Guarantee Agreement for the benefit of the Holders................................................................ 6
(c) The Guarantee Trustee, before the occurrence of any Event of Default and after the curing or
waiving of all Events of Default that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Guarantee Agreement, and no implied covenants
shall be read into this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6), the Guarantee
Trustee shall exercise such of the rights and powers vested in it by this Guarantee Agreement,
and use the same degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own affairs.................................. 6
(d) No provision of this Guarantee Agreement shall be construed to relieve the Guarantee Trustee
from liability for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:.................................................................................. 6
Section 3.2 Certain Rights of Guarantee Trustee..................................................................... 7
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(a) Subject to the provisions of Section 3.1:........................................................................... 7
(b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation on
the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in
which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable
law, to perform any such act or acts or to exercise any such right, power, duty or obligation
No permissive power or authority available to the Guarantee Trustee shall be construed to be a
duty to act in accordance with such power and authority........................................................... 8
Section 3.3 Indemnity.............................................................................................. 8
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Section 3.4 Fees and Expenses...................................................................................... 8
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ARTICLE IV. GUARANTEE TRUSTEE................................................................................................... 9
Section 4.1 Guarantee Trustee; Eligibility......................................................................... 9
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(a) There shall at all times be a Guarantee Trustee which shall:........................................................ 9
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a),
the Guarantee Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).................................................................................................... 9
(c) If the Guarantee Trustee has or shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture Act.................................. 9
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.......................................... 10
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(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or removed without cause at
any time by the Guarantor........................................................................................ 9
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor................................................................. 9
(c) The Guarantee Trustee appointed hereunder shall hold office until a Successor Guarantee Trustee
shall have been appointed or until its removal or resignation. The Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by instrument in writing executed by such Successor Guarantee Trustee and
delivered to the Guarantor and the resigning Guarantee Trustee................................................... 9
(d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 4.2 within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee...................................................................................... 10
ARTICLE V. GUARANTEE........................................................................................................... 10
Section 5.1 Guarantee...................................................................................... 10
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Section 5.2 Waiver of Notice and Demand.................................................................... 10
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Section 5.3 Obligations Not Affected....................................................................... 10
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(a) the release or waiver, by operation of law or otherwise, of the performance or observance by
the Issuer of any express or implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;................................................ 11
(b) the extension of time for the payment by the Issuer of all or any portion of the Distributions
(other than an extension of time for payment of Distributions that results from the extension
of any interest payment period on the Notes as provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the terms of the Preferred Securities
or the extension of time for the performance of any other obligation under, arising out of, or
in connection with, the Preferred Securities;.................................................................. 11
(c) any failure, omission, delay or lack of diligence on the part of the Holders or the Guarantee
Trustee to enforce, assert or exercise any right, privilege, power or remedy conferred on the
Holders pursuant to the terms of the Preferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;........................................................... 11
(d) the voluntary or involuntary liquidation, dissolution, sale of any collateral, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings affecting, the Issuer or
any of the assets of the Issuer;............................................................................... 11
(e) any invalidity of, or defect or deficiency in, the Preferred Securities;......................................... 11
(f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or.......................... 11
(g) any other circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 5.3 that the
obligations of the Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.................................................................................................. 11
Section 5.4 Rights of Holders.................................................................................. 11
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Section 5.5 Guarantee of Payment............................................................................... 12
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Section 5.6 Subordination...................................................................................... 12
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Section 5.7 Independent Obligations............................................................................ 12
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ARTICLE VI. COVENANTS AND SUBORDINATION........................................................................................ 12
Section 6.1 Subordination...................................................................................... 12
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Section 6.2 Pari Passu Guarantees.............................................................................. 12
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ARTICLE VII. TERMINATION....................................................................................................... 13
Section 7.1 Termination........................................................................................ 13
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ARTICLE VIII. MISCELLANEOUS............................................................................................... 13
Section 8.1 Successors and Assigns........................................................................... 13
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Section 8.2 Amendments....................................................................................... 13
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Section 8.3 Notices.......................................................................................... 13
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(a) if given to the Guarantor, to the address set forth below or such other address, facsimile
number or to the attention of such other Person as the Guarantor may give notice to the Holders:............ 13
(b) if given to the Issuer, in care of the Guarantee Trustee, at the Issuer's (and the Guarantee
Trustee's) respective addresses set forth below or such other address as the Guarantee Trustee
on behalf of the Issuer may give notice to the Holders:..................................................... 14
(c) if given to the Guarantee Trustee, at the Guarantee Trustee's address set forth below or such
other address as the Guarantee Trustee may give notice to the Holders:...................................... 14
(d) if given to any Holder, at the address set forth on the books and records of the Issuer....................... 14
Section 8.4 Benefit......................................................................................... 14
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Section 8.5 Interpretation.................................................................................. 15
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(a) capitalized terms used in this Guarantee Agreement but not defined in the preamble hereto have
the respective meanings assigned to them in Section 1.1;.................................................... 15
(b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout;.......................... 15
(c) all references to "the Guarantee Agreement" or "this Guarantee Agreement" are to this Guarantee
Agreement as modified, supplemented or amended from time to time;........................................... 15
(d) all references in this Guarantee Agreement to Articles and Sections are to Articles and
Sections of this Guarantee Agreement unless otherwise specified;............................................ 15
(e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee
Agreement unless otherwise defined in this Guarantee Agreement or unless the context otherwise
requires;................................................................................................... 15
(f) a reference to the singular includes the plural and vice versa; and........................................... 15
(g) the masculine, feminine or neuter genders used herein shall include the masculine, feminine and
neuter genders.............................................................................................. 15
Section 8.6 Governing Law................................................................................... 15
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GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of February 23, 2000 (this "Guarantee
Agreement"), entered into between SEMPRA ENERGY, a California corporation having
its principal office at 000 Xxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (the
"Guarantor"), and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
SEMPRA ENERGY CAPITAL TRUST I, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust, dated as
of February 23, 2000 (the "Declaration"), among Sempra Energy, a California
corporation (the "Company"), as Sponsor, the Property Trustee named therein, the
Delaware Trustee named therein, the Regular Trustees named therein and the
several Holders as defined therein, the Issuer is issuing up to $____________
aggregate Liquidation Amount (as defined in the Declaration) of its _____%
Cumulative Quarterly Income Preferred Securities, Series A (Liquidation Amount
$25 per Preferred Security) (the "Preferred Securities"), representing undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in the Declaration;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Common
Securities (as defined in the Declaration), will be used to purchase the Notes
(as defined in the Declaration) of the Company which will be deposited with The
Bank of New York, as Property Trustee under the Declaration, as trust assets;
and
WHEREAS, as incentive for the Holders to purchase Preferred Securities the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. As used in this Guarantee Agreement, the terms
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set forth below shall, unless the context otherwise requires, have the following
meanings. Capitalized or otherwise defined terms used but not otherwise defined
herein shall have the meanings assigned to such terms in the Declaration as in
effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Event of Default" means (i) a default by the Guarantor on any of its
payment obligations under this Guarantee Agreement and (ii) a default by the
Guarantor on any other obligation hereunder that remains uncured after 30 days
from the occurrence thereof.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accumulated and unpaid
Distributions (as defined in the Declaration) required to be paid on the
Preferred Securities, to the extent the Issuer shall have funds on hand
available therefor at such time, (ii) the redemption price, including all
accumulated and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to any Preferred Securities called for redemption by the
Issuer, to the extent the Issuer shall have funds on hand available therefor at
such time, and (iii) upon a voluntary or involuntary termination, winding-up or
liquidation of the Issuer, unless Notes are distributed to the Holders, the
lesser of (a) the aggregate of the Liquidation Amount of $25 per Preferred
Security plus accumulated and unpaid Distributions on the Preferred Securities
to the date of payment, to the extent the Issuer shall have funds on hand
available therefor at such time and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution").
"Guarantee Trustee" has the meaning set forth in the preamble to this
Guarantee Agreement.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Indenture dated as of February 23, 2000 among the
Company and The Bank of New York, as trustee thereunder, as supplemented by an
Officers' Certificate (as defined in the Indenture) dated as of February 23,
2000 pursuant to Section 301 of the Indenture.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of Preferred Securities or Common Securities voting together as a
single class or, as the context may require, Holder(s) of Preferred Securities
or Common Securities voting separately as a class, who vote Securities of a
relevant class and the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of the Securities voted by such
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Securityholders represents more than 50% of the above stated aggregate
liquidation amount of all Securities of such class.
"Officer's Certificate" means a certificate signed by any one of the
Chairman of the Board, Chief Executive Officer, President, a Vice President, the
Treasurer, an Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Guarantee Trustee. Any Officer's Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that the officer signing the Officer's Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by such officer in rendering the Officer's
Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Vice-President, any Assistant Vice-President, any Assistant Secretary, any
Assistant Treasurer, any Trust Officer or Assistant Trust Officer or any other
officer of the Guarantee Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
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ARTICLE II.
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
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(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
Section 2.2 List of Holders; Preferential Claims.
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(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) not later than 15 days after each of ________, ________,
_______ and ________ (each such date a "Regular Record Date") of each year, a
list, in such form as the Guarantee Trustee may reasonably require, containing
all the information in the possession or control of the Guarantor, as to of the
names and addresses of the Holders ("List of Holders") as of the preceding
respective Regular Record Date, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished. The Guarantee
Trustee shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it, provided that the
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 31l(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Guarantee Trustee.
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(a) Not later than 60 days following February 15 of each year,
commencing February 15, 2001, the Guarantee Trustee shall provide to the Holders
such reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form and in the manner provided by Section 313 of the Trust Indenture
Act. The Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
(b) In addition, the Guarantee Trustee shall transmit to all Holders
and to the Company, a brief report dated as of such May 15 with respect to its
eligibility under Section 4.1 or, in lieu thereof, if to the best of its
knowledge it has continued to be eligible under said Section, a written
statement to such effect.
Section 2.4 Periodic Reports to the Guarantee Trustee. The Guarantor
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shall provide to the Guarantee Trustee such documents, reports and information,
if any, as required by Section
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314 of the Trust Indenture Act and the compliance certificate required by
Section 314 of the Trust Indenture Act, in the form, in the manner and at the
times required by Section 314(a)(4) of the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent. The
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Guarantor shall provide to the Guarantee Trustee such evidence of compliance
with such conditions precedent, if any, provided for in this Guarantee Agreement
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to such Section 314(c)(1) may be given in the form of an Officer's
Certificate.
Section 2.6 Events of Default; Waiver. The Holders of a Majority in
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Liquidation Amount of the Securities may, by vote, on behalf of the Holders,
waive any past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.
(a) Event of Default; Notice. The Guarantee Trustee shall, within
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90 days after the occurrence of an Event of Default actually known to a
Responsible Officer of the Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders, notices of all such defaults unless such
defaults have been cured before the giving of such notice (the term "defaults"
for the purposes of this Section 2.6(a) being hereby defined to be an Event of
Default as, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided, that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers, of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
Section 2.7 Conflicting Interests. The Declaration and the Indenture
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Indenture shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1 Powers and Duties of the Guarantee Trustee.
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(a) This Guarantee Agreement shall be held by the Guarantee Trustee
for the benefit of the Holders, and the Guarantee Trustee shall not transfer
this Guarantee Agreement to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its appointment hereunder, and
such vesting and cessation of title
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shall be effective whether or not conveying documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default
and after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Guarantee Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee Agreement, and
the Guarantee Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee Trustee,
unless it shall be proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any
action or omitted to be taken by it in good faith in accordance with the of the
Holders of not less than a Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or
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exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or liability
is not reasonably assured to it under the terms of this Guarantee Agreement or
adequate indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
Section 3.2 Certain Rights of Guarantee Trustee.
-----------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an Officer's Certificate
unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting to take any action
hereunder, the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officer's Certificate which, upon receipt of such
request from the Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of
its selection, and the written advice or written opinion of such legal counsel
with respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion. Such
legal counsel may be legal counsel to the Guarantor or any of its Affiliates and
may be one of its employees. The Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee Agreement at
the request or direction of any Holder, unless such Holder shall have provided
to the Guarantee Trustee such adequate security and indemnity reasonably
satisfactory to it, against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be requested by
the Guarantee Trustee;
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provided that, nothing contained in this Section 3.2(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this Guarantee
Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through its agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent or
attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement
the Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action hereunder,
the Guarantee Trustee (A) may request instructions from the Holders, (B) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on it
in any jurisdiction in which it shall be illegal, or in which the Guarantee
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
Section 3.3 Indemnity. The Guarantor agrees to indemnify the Guarantee
---------
Trustee and its officers, directors, employees, representatives and agents for,
and to hold it and such persons harmless against, any loss, liability or expense
of whatever kind or nature regardless of their merit, demanded, asserted or
claimed against the Guarantee Trustee and incurred without negligence or bad
faith on the part of the Guarantee Trustee, arising out of or in connection with
the acceptance or administration of this Guarantee Agreement, including without
limitation the costs and expenses of defending itself (including reasonable
attorneys' and consultants' fees and expenses) against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. The indemnification provided hereunder shall survive the termination
of this Guarantee Agreement and the resignation or removal of the Guarantee
Trustee.
Section 3.4 Fees and Expenses. The Guarantor agrees:
-----------------
(1) to pay the Guarantee Trustee from time to time such compensation as the
Guarantor and the Guarantee Trustee shall from time to time agree in writing for
all services rendered by it
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hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Guarantee
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Guarantee Trustee in accordance with any provision of
this Indenture (including the compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith.
ARTICLE IV.
GUARANTEE TRUSTEE
Section 4.1 Guarantee Trustee; Eligibility.
------------------------------
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000, and shall be a corporation meeting the requirements of Section
310(a) of the Trust Indenture Act. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
-------------------------------------------------------------
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The
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Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Guarantee Trustee and
delivered to the Guarantor, which resignation shall not take effect until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by instrument in writing executed by such Successor Guarantee Trustee and
delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
ARTICLE V.
GUARANTEE
Section 5.1 Guarantee. The Guarantor irrevocably and unconditionally
---------
agrees to pay in full to the Holders the Guarantee Payments (without duplication
of amounts theretofore paid by or on behalf of the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim which the Issuer may
have or assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
Section 5.2 Waiver of Notice and Demand. The Guarantor hereby waives
---------------------------
notice of acceptance of this Guarantee Agreement and of any liability to which
it applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Guarantee Trustee, Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
Section 5.3 Obligations Not Affected. The obligations, covenants,
------------------------
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be affected or impaired by reason of the happening from time to time of
any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Notes as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders or the Guarantee Trustee to enforce, assert or exercise any right,
privilege, power or remedy
-10-
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain
the consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.4 Rights of Holders. The Guarantor expressly acknowledges
-----------------
that: (i) this Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the
right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the
Holders of a Majority in Liquidation Amount of the Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the Guarantee
Trustee, the Issuer or any other Person.
Section 5.5 Guarantee of Payment. This Guarantee Agreement creates
--------------------
a guarantee of payment and not of performance or collection. This Guarantee
Agreement will not be discharged except by payment of the Guarantee Payments in
full (without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Notes to Holders as provided in the Declaration.
Section 5.6 Subordination. The Guarantor shall be subrogated to all
-------------
(if any) rights of the Holders against the Issuer, in respect of any amounts
paid to the Holders by the Guarantor under this Guarantee Agreement, and shall
have the right to waive payment by the Issuer pursuant to Section 5.1; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire against the Issuer by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Guarantee Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Guarantee Agreement. If any
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amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
Section 5.7 Independent Obligations. The Guarantor acknowledges that its
-----------------------
obligations hereunder are independent of the obligations of the Issuer with
respect to the Preferred Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI.
COVENANTS AND SUBORDINATION
Section 6.1 Subordination. The obligations of the Gurantor under this
-------------
Guarantee Agreement will constitute unsecured obligations of the Guarantor and
will rank subordinate and junior in right of payment to all other liabilities of
the Guarantor except those made pari passu or subordinate to such obligations
expressly by their terms.
Section 6.2 Pari Passu Guarantees. The obligations of the Guarantor under
---------------------
this Guarantee Agreement shall rank pari passu with the obligations of the
Guarantor under any similar Guarantee Agreements issued by the Guarantor on
behalf of the holders of preferred securities issued by any other trusts
established by Guarantor or its Affiliates.
ARTICLE VII.
TERMINATION
Section 7.1 Termination. This Guarantee Agreement shall terminate and no
-----------
be of no further force and effect upon (i) full payment of the Redemption Price
of all Preferred Securities, (ii) the distribution of Notes to the Holders in
exchange for all of the Preferred Securities or (iii) full payment of the
amounts payable in accordance with the Declaration upon liquidation of the
Issuer. Notwithstanding the foregoing, this Guarantee Agreement will continue to
be effective or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sums paid with respect to Preferred
Securities or this Guarantee Agreement.
ARTICLE VIII.
MISCELLANEOUS
Section 8.1 Successors and Assigns. All guarantees and agreements
----------------------
contained in this Guarantee Agreement shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities from time to time
outstanding. Except in connection with a consolidation, merger or sale involving
the Guarantor that is permitted under Article VIII of the Indenture and pursuant
to which the successor or assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations hereunder.
-12-
Section 8.2 Amendments. Except with respect to any changes which do not
----------
which do not adversely affect the rights of the Holders in any material respect
(in which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior written approval of the Holders of
a Majority in Liquidation Amount of Securities. The provisions of Article VI of
the Declaration concerning meetings of the Holders shall apply to the giving of
such approval.
Section 8.3 Notices. Any notice, request or other communication required
-------
or permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, and delivered, telecopied or mailed by first class mail as
follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
Sempra Energy
000 Xxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: 000-000-0000
Attention: Chief Corporate Counsel
(b) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) respective addresses set forth below or
such other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
Sempra Energy Capital Trust I
000 Xxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Facsimile No.: [000-000-0000]
Attention: [Chief Corporate Counsel]
with a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00-X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attention: Corporate Trust Administration
(c) if given to the Guarantee Trustee, at the Guarantee Trustee's
address set forth below or such other address as the Guarantee Trustee may give
notice to the Holders:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00-X
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attention: Corporate Trust Administration
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(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 8.4 Benefit. This Guarantee Agreement is solely for the benefit
-------
of the Holders and is not separately transferable from the Preferred Securities.
Section 8.5 Interpretation. In this Guarantee Agreement, unless the
--------------
context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned to them in
Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
Section 8.6 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY
-------------
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
(Signatures follow)
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
SEMPRA ENERGY
By: _____________________________________
Name: Xxxxxxx X. XxXxxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Guarantee Trustee
By: _____________________________________
Name:
Title:
