EXHIBIT 4.4
CALCULATION AGENCY AGREEMENT
BETWEEN
PACIFIC GAS AND ELECTRIC COMPANY
AND
BNY WESTERN TRUST COMPANY
FLOATING RATE FIRST MORTGAGE BONDS DUE 2006
This Calculation Agency Agreement (this "Agreement") is made
as of March 23, 2004, between Pacific Gas and Electric Company, a California
corporation (the "Company"), and BNY Western Trust Company, a California banking
corporation (together with any successor, called the "Calculation Agent").
W I T N E S S E T H
WHEREAS, the Company proposes to issue and sell certain of its
securities designated as Floating Rate First Mortgage Bonds Due 2006 (the
"Floating Rate Bonds"). The Floating Rate Bonds will be offered and sold by the
Company to Xxxxxx Brothers Inc. and UBS Securities LLC (the "Representatives")
and the other underwriters named in Schedule I to that certain Underwriting
Agreement dated March 18, 2004 by and among the Company and the Representatives.
The Floating Rate Bonds are to be issued under an Indenture of Mortgage dated as
of March 11, 2004 as supplemented, between the Company and BNY Western Trust
Company, as Trustee (the "Trustee").
For the purpose of appointing an agent to calculate the
interest rate based on LIBOR on the Floating Rate Bonds, the Company and the
Calculation Agent agree as follows:
1. Upon the terms and subject to the conditions contained herein,
the Company hereby appoints BNY Western Trust Company as its Calculation Agent
and BNY Western Trust Company hereby accepts such appointment as the Company's
agent for the purpose of calculating the applicable interest rates on the
Floating Rate Bonds in accordance with the provisions set forth in the Floating
Rate Bonds which provisions are incorporated by reference herein as if set forth
in full in this Agreement.
2. The Calculation Agent shall exercise due care to determine the
interest rates on the Floating Rate Bonds and shall communicate the same to the
Company, the Trustee, The Depository Trust Company and any paying agent
identified to it in writing as soon as practicable after each determination. The
Calculation Agent will, upon the request of the holder of any Floating Rate
Bond, provide the interest rate then in effect with respect to such Floating
Rate Bond and, if determined, the interest rate with respect
to such Floating Rate Bond which will become effective on the next Interest
Reset Date (as that term is defined in each Floating Rate Bond).
3. The Calculation Agent accepts its obligations set forth
herein, upon the terms and subject to the conditions hereof, including the
following, to all of which the Company agrees:
(a) The Calculation Agent shall be entitled to such compensation
as may be agreed upon with the Company for all services rendered by the
Calculation Agent, and the Company promises to pay such compensation and to
reimburse the Calculation Agent for the reasonable out-of-pocket expenses
(including attorneys' and other professionals' fees and expenses) incurred by it
in connection with the services rendered by it hereunder upon receipt of such
invoices as the Company shall reasonably require. The Company also agrees to
indemnify the Calculation Agent for, and to hold it harmless against, any and
all loss, liability, damage, claim or expense (including the costs and expenses
of defending against any claim (regardless of who asserts such claim) of
liability) incurred by the Calculation Agent that arises out of or in connection
with its accepting appointment as, or acting as, Calculation Agent hereunder,
except such as may result from the negligence, willful misconduct or bad faith
of the Calculation Agent or any of its agents or employees. The Calculation
Agent shall incur no liability and shall be indemnified and held harmless by the
Company for, or in respect of, any actions taken, omitted to be taken or
suffered to be taken in good faith by the Calculation Agent in reliance upon
written instructions from the Company. The provisions of this section shall
survive the termination of this Agreement.
(b) In acting under this Agreement, the Calculation Agent is
acting solely as agent of the Company and does not assume any obligations to or
relationship of agency or trust for or with any of the owners or holders of the
Floating Rate Bonds.
(c) The Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken or
anything suffered by it in reliance upon the terms of the Floating Rate Bonds,
any notice, direction, certificate, affidavit, statement or other paper,
document or communication reasonably believed by it to be genuine and to have
been approved or signed by the proper party or parties.
(d) The Calculation Agent, its officers, directors, employees and
shareholders may become the owners or pledgee of, or acquire any interest in,
any Floating Rate Bonds, with the same rights that it or they would have if it
were not the Calculation Agent, and may engage or be interested in any financial
or other transaction with the Company as freely as if it were not the
Calculation Agent.
(e) Neither the Calculation Agent nor its officers, directors,
employees, agents or attorneys shall be liable to the Company for any act or
omission hereunder, or for any
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error of judgment made in good faith by it or them, except in the case of its or
their negligence, willful misconduct or bad faith.
(f) The Calculation Agent may consult with counsel of its
selection appointed by it with due care and the advice of such counsel or any
opinion of counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(g) The Calculation Agent shall be obligated to perform such
duties and only such duties as are herein specifically set forth, and no implied
duties or obligations shall be read into this Agreement against the Calculation
Agent.
(h) Unless herein otherwise specifically provided, any order,
certificate, notice, request, direction or other communication from the Company
made or given by it under any provision of this Agreement shall be sufficient if
signed by any officer of the Company.
(i) The Calculation Agent may perform any duties hereunder either
directly or by or through agents or attorneys, and the Calculation Agent shall
not be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(j) The Company will not, without first obtaining the prior
written consent of the Calculation Agent, make any change to the Floating Rate
Bonds if such change would materially and adversely affect the Calculation
Agent's duties and obligations under this Agreement.
4. (a) The Calculation Agent may at any time resign as
Calculation Agent by giving written notice to the Company of such intention on
its part, specifying the date on which its desired resignation shall become
effective; provided, however, that such date shall never be earlier than 60 days
after the receipt of such notice by the Company, unless the Company otherwise
agrees in writing. The Calculation Agent may be removed at any time by the
filing with it of any instrument in writing signed on behalf of the Company and
specifying such removal and the date when it is intended to become effective.
Such resignation or removal shall take effect upon the date of the appointment
by the Company, as hereinafter provided, of a successor Calculation Agent. If
within 30 days after notice of resignation or removal has been given, a
successor Calculation Agent has not been appointed, the Calculation Agent may,
at the expense of the Company, petition a court of competent jurisdiction to
appoint a successor Calculation Agent. A successor Calculation Agent shall be
appointed by the Company by an instrument in writing signed on behalf of the
Company and the successor Calculation Agent. Upon the appointment of a successor
Calculation Agent and acceptance by it of such appointment, the Calculation
Agent so succeeded shall cease to be such Calculation Agent hereunder. Upon its
resignation or removal, the Calculation Agent shall be entitled to the payment
by the
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Company of its compensation, if any is owed to it, for services rendered
hereunder and to the reimbursement of all reasonable out-of-pocket expenses
incurred in connection with the services rendered by it hereunder and to the
payment of all other amounts owed to it hereunder.
(b) Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Calculation
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as such Calculation
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled to receive,
copies of any relevant records maintained by such predecessor Calculation Agent.
(c) Any corporation into which the Calculation Agent may be
merged, or any corporation with which the Calculation Agent may be consolidated,
or any corporation resulting from any merger or consolidation or to which the
Calculation Agent shall sell or otherwise transfer all or substantially all of
its corporate trust assets or business shall, to the extent permitted by
applicable law, be the successor Calculation Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto. Notice of any such merger, consolidation or sale shall
forthwith be given to the Company and the Trustee.
5. Any notice required to be given hereunder shall be delivered
in person, sent by letter or telecopy or communicated by telephone (subject, in
the case of communication by telephone, to confirmation dispatched within 24
hours by letter or by telecopy):
If to the Calculation Agent, to:
BNY Western Trust Company
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Fax: (000) 000-0000
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If to the Company, to:
Pacific Gas and Electric Company
00 Xxxxx Xxxxxx (xxxxxx address)
X.X. Xxx 000000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer and Assistant Treasurer
Telephone: (000) 000-0000
Fax: (000) 000-0000/267-7265
Pacific Gas and Electric Company
c/o PG&E Corporation
Xxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Counsel, Corporate
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to The Depository Trust Company, to:
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Dividend Department, Announcements
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to any other address of which any party shall have notified the others in
writing as herein provided. Any notice hereunder given by telephone, telecopy or
letter shall be deemed to be received when in the ordinary course of
transmission or post, as the case may be, it would be received.
6. This Agreement and the appointment as Calculation Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of California applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of laws principles, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
7. This Agreement may be amended only by a writing duly executed
and delivered by the Company and the Calculation Agent.
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8. This Agreement may be executed by each of the parties hereto
in any number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all such counterparts shall
together constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
PACIFIC GAS AND ELECTRIC COMPANY
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Xxxx Xxxxxx
Senior Vice President, Chief Financial Officer
and Treasurer
BNY WESTERN TRUST COMPANY
By: /s/ Xxxxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxxxx Xxxxxxx
Vice President
[Signature Page to Calculation Agency Agreement]
