Exhibit 1.1
Execution Copy
Pacific Gas and Electric Company
$700,000,000 Aggregate Principal Amount
of 5.80% Senior Notes Due March 1, 2037
Underwriting Agreement
New York, New York
March 8, 2007
|
|
|
To
|
|
the Representatives named in
|
|
|
Schedule I hereto of the several
|
|
|
Underwriters named in Schedule
|
|
|
II hereto
|
Ladies and Gentlemen:
Pacific Gas and Electric Company, a corporation organized under the laws of California (the
Company), proposes to sell to the several underwriters named in Schedule II hereto (the
Underwriters), for whom you (the Representatives) are acting as representatives, the principal
amount of its securities identified in Schedule I hereto (the Securities), to be issued under an
indenture, amended and restated as of April 25, 2005 (the Base Indenture) and supplemented by a
supplemental indenture, to be dated as of March 13, 2007 (the Supplemental Indenture and together
with the Base Indenture, the Indenture), between the Company and The Bank of New York Trust
Company, N.A., as trustee (the Trustee). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall mean either the singular or
plural as the context requires. Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case
may be; and any reference herein to the terms amend, amendment or supplement with respect to
the Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. Certain terms used herein are defined in Section 20 hereof.
1.
Representations and Warranties
. The Company represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
(a) The Company and the transactions contemplated herein meet the requirements for use
of Form S-3 under the Act and the Company has prepared and filed with the Commission a
registration statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, and a post-effective amendment thereto, including a
related Base Prospectus, for
registration under the Act of the offering and sale of the Securities. Such Registration
Statement, including such post-effective amendment and any amendments thereto filed prior to
the Execution Time, have become effective. The Company may have filed with the Commission,
as part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or
more preliminary prospectus supplements relating to the Securities, each of which has
previously been furnished to you. The Company will file with the Commission a final
prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed,
such final prospectus supplement shall, except to the extent that the Representatives shall
agree in writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the Company
has advised you, prior to the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and on the Closing Date (as defined
herein), the Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each Effective Date and at the
Execution Time, the Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules thereunder; and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any 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 the Company makes no representations or warranties as to (i) that part
of the Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or the Final Prospectus
(or any supplement thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood and agreed that the only such information furnished
by or on behalf of any Underwriter consists of the information described as such in Section
8 hereof.
(c) As of the Execution Time and the Closing Date, (i) the Disclosure Package and (ii)
each electronic road show, if any, when taken together as a whole with
the Disclosure Package, did not and will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Disclosure
2
Package based upon
and in conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(d) (i) At the time of the most recent amendment to the Registration Statement for the
purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the
Exchange Act or form of prospectus), (ii) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Securities in reliance on the exemption in Rule 163, and (iii) at the
Execution Time (with such date being used as the determination date for purposes of this
clause (iv)), the Company was or is (as the case may be) a well-known seasoned issuer as
defined in Rule 405.
(e) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a
bona fide
offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used as
the determination date for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account of any determination by
the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed
pursuant to Section 5(b) hereto did not, as of its issue date, and does not include any
information that conflicts with the information contained in the Registration Statement,
including any document incorporated therein by reference and any prospectus supplement
deemed to be a part thereof that has not been superseded or modified. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company by
any Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8 hereof.
(g) The Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of California, with full corporate power and
authority to own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Disclosure Package and the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole (a Material Adverse Effect).
(h) The statements in the Preliminary Prospectus and the Final Prospectus under the
headings Business- PG&E Corporations Regulatory Environment, Business- The Utilitys
Regulatory Environment, Business- Competition,
3
Business- Ratemaking Mechanisms,
Business- Environmental Matters, and Legal Proceedings of the Preliminary Prospectus and
the Final Prospectus insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings.
(i) This Agreement has been duly authorized, executed and delivered by the Company.
(j) The Indenture has been duly authorized by the Company; and the Base Indenture has
been, and at the Closing Date the Supplemental Indenture will have been, duly executed and
delivered by the Company; and the Base Indenture constitutes and at the Closing Date,
assuming due authorization, execution and delivery by the Trustee, the Supplemental
Indenture will constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as enforcement thereof may be limited by
laws and principles of equity affecting the enforcement of creditors rights, including,
without limitation, bankruptcy, reorganization, insolvency arrangement, fraudulent
conveyance, moratorium, receivership, assignment for the benefit of creditors laws; and the
Base Indenture has been duly qualified under the Trust Indenture Act.
(k) The issuance and sale by the Company of the Securities pursuant to this Agreement
have been duly authorized by all necessary corporate action; and, when issued, authenticated
and delivered to the Underwriters pursuant to this Agreement against payment of the
consideration therefor specified herein, the Securities will be valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms,
except as enforcement thereof may be limited by laws or principles of equity affecting
creditors rights, including, without limitation, bankruptcy, reorganization, insolvency,
arrangement, fraudulent conveyance, moratorium, receivership, assignment for the benefit of
creditors laws, and will be entitled to the benefits of the Indenture.
(l) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Disclosure
Package and the Final Prospectus, will not be an investment company as defined in the
Investment Company Act of 1940, as amended (the 1940 Act) or a company controlled by an
investment company within the meaning of the 1940 Act.
(m) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein, except such as have been obtained under the Act, the Trust Indenture Act or
otherwise and such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Disclosure Package and the
Final Prospectus.
4
(n) None of the issue and sale of the Securities, the consummation of any other of the
transactions herein contemplated or the performance by the Company of any of its obligations
set forth herein will conflict with, result in a breach or violation of: (i) the charter,
by-laws or comparable constituent documents of the Company or any of its subsidiaries, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its or their property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or decree applicable
to the Company or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction over the
Company or any of its subsidiaries or any of its or their properties, except, in the cases
of clause (ii) and (iii) above, for such conflicts, breaches or violations which could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(o) The consolidated historical financial statements and schedules of the Company and
its consolidated subsidiaries included in the Preliminary Prospectus, the Final Prospectus
and the Registration Statement present fairly the financial condition, results of operations
and cash flows of the Company and its consolidated subsidiaries as of the dates and for the
periods indicated, comply as to form with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved (except as otherwise noted therein).
The selected financial data set forth under the caption Selected Financial Data in the
Preliminary Prospectus, the Final Prospectus and Registration Statement fairly present, on
the basis stated in the Preliminary Prospectus, the Final Prospectus and the Registration
Statement, the information included therein.
(p) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries or its
or their property is pending or, to the best knowledge of the Company, threatened that (i)
could reasonably be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated hereby or (ii) could
reasonably be expected to have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(q) The Company has good and valid title to all real and personal property owned by it,
in each case free and clear of all liens, encumbrances, equities or claims except such as
(i) are described in the Registration Statement, the Disclosure Package and the Final
Prospectus, (ii) are permitted by the Indenture, (iii) could not reasonably be expected to
have a material adverse effect on the performance of this Agreement or the consummation of
any of the transactions contemplated hereby, or (iv) could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect; all real or personal property held by the Company pursuant to leases which is
material to the Company is held under leases that are (i) valid and enforceable, and (ii) do
5
not contain exceptions that would materially interfere with the Companys current or
expected use thereof.
(r) Neither the Company nor any of its subsidiaries is or, with the giving of notice
the lapse of time would be, in violation or default of (i) any provision of its charter,
bylaws or comparable constituent documents, (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or bound or to which
its property is subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental body, arbitrator
or other authority having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable, except, in the cases of clauses (ii) and (iii), for such
violations or defaults that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(s) Deloitte & Touche LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with respect to the
audited consolidated financial statements and schedules included in the Disclosure Package
and the Final Prospectus, is an independent registered public accounting firm with respect
to the Company within the meaning of the Act and the applicable published rules and
regulations thereunder and of the Public Company Accounting Oversight Board.
(t) The Company and its subsidiaries possess such licenses, certificates, permits and
other authorizations (each, an Authorization) issued by all applicable authorities
necessary to conduct their respective businesses, except where the failure to have any such
Authorizations could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any such Authorization
which, individually or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the
Registration Statement, Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
(u) The Company maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with
managements general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with managements general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. The
Companys internal controls over financial reporting are effective and it is not aware
of any material weakness in its internal controls over financial reporting.
6
(v) The Companys disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) are effective.
(w) The Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(x) Except as set forth or contemplated in the Registration Statement, Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto), neither the Company
nor any of its subsidiaries is (i) in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or toxic
substances (collectively, Environmental Laws), (ii) owns or operates any real property
contaminated with any substance that is subject to any Environmental Laws, (iii) is liable
for any off-site disposal or contamination pursuant to any Environmental Laws, or (iv) is
subject to any claim relating to any Environmental Laws, which violation, contamination,
liability or claim could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and there is no investigation pending or, to the Companys
knowledge, threatened against it or its subsidiaries, that could reasonably be expected to
lead to the making of such a claim.
(y) The Company does not have any significant subsidiaries as defined by Rule 1-02 of
Regulation S-X.
(z) The Settlement Agreement, dated December 19, 2003 (the Settlement Agreement),
among the Company, PG&E Corporation and California Public Utilities Commission (the CPUC)
has not been modified in any material way since December 19, 2003 and remains in full force
and effect. The CPUC has authorized the issuance and sale by the Company of the Securities,
and such authorization is in full force and effect and sufficient for the issuance and sale
of the Securities to the Underwriters.
Any certificate signed by any officer of the Company and delivered to the Representatives or
counsel for the Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriters name in Schedule II hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made on
the date and at the time specified in Schedule I hereto or at such time on such later
date not more than three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the Representatives and
7
the
Company or as provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the Closing Date). Delivery of the Securities shall be made to
the Representatives for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account specified by the Company.
Delivery of the Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
4.
Offering by Underwriters
. It is understood that the several Underwriters propose
to offer the Securities for sale to the public as set forth in the Final Prospectus.
5.
Agreements
. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or supplement (including the Final
Prospectus or any Preliminary Prospectus) to the Base Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. The Company will cause the Final
Prospectus, properly completed, and any supplement thereto to be filed in a form approved by
the Representatives with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the Representatives
(i) when the Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (ii) when, prior to termination of
the offering of the Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission or its staff for any
amendment of the Registration Statement, or for any supplement to the Final Prospectus or
for any additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any notice objecting to its
use, any order preventing or suspending the use of any preliminary prospectus, any Issuer
Free Writing Prospectus or the Final Prospectus, or the institution or threatening of any
proceeding for the purpose of suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any preliminary prospectus, any Issuer Free Writing
Prospectus or the Final Prospectus, and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the institution or threatening of any proceeding for such purpose.
The Company will use its reasonable best efforts to prevent (i) the issuance of such stop
order or other order referred to in the preceding sentence, or (ii) the occurrence of (A)
any suspension of the effectiveness, or objection to the use, of the Registration Statement
or (B) any prevention or suspension of the use of the preliminary prospectus, any Issuer
Free Writing Prospectus or the Final Prospectus and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or
relief from such occurrence or objection, including, if necessary, by filing an amendment to
the Registration Statement or a new registration statement and using its best efforts to
have such amendment or new registration statement declared effective as soon as practicable.
8
(b) To prepare a final term sheet, containing solely a description of final terms of
the Securities and the offering thereof, in the form approved by you and attached as
Schedule IV hereto and to file such term sheet pursuant to Rule 433(d) within the time
required by such Rule.
(c) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b), any event occurs as a result of which the Disclosure Package would include any
untrue statement of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made or the
circumstances then prevailing not misleading, the Company will (i) notify promptly the
Representatives so that any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package to correct such statement or
omission; and (iii) supply any amendment or supplement to you in such quantities as you may
reasonably request.
(d) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be necessary to amend
the Registration Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder,
including in connection with use or delivery of the Final Prospectus, the Company promptly
will (i) notify the Representatives of any such event, (ii) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement or new registration statement which will correct such statement or omission or
effect such compliance, (iii) use its best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon as practicable in order
to avoid any disruption in use of the Final Prospectus and (iv) supply any supplemented
Final Prospectus to you in such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally available to its security
holders and to the Representatives an earnings statement or statements of the Company and
its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits thereto) and
to each other Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the
Act (including in circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus,
the Final Prospectus and each Issuer Free Writing Prospectus and any supplement thereto
as the Representatives may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the offering.
9
(g) The Company will arrange, if necessary, for the qualification of the Securities for
sale under the laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written
consent of the Representatives, and each Underwriter, severally and not jointly, agrees with
the Company that, unless it has or shall have obtained, as the case may be, the prior
written consent of the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a free writing prospectus (as defined in Rule 405) required to be filed by the
Company with the Commission or retained by the Company under Rule 433, other than a free
writing prospectus containing the information contained in the final term sheet prepared and
filed pursuant to Section 5(b) hereto; provided that the prior written consent of the
parties hereto shall be deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule III hereto and any electronic road show. Any such free
writing prospectus consented to by the Representatives or the Company is hereinafter
referred to as a Permitted Free Writing Prospectus. The Company agrees that (x) it has
treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be,
with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including in respect of timely filing with the Commission, legending and record
keeping and that it will not take any action that would result in any Underwriter or the
Company being required to file with the Commission pursuant to Rule 433(d) a Free Writing
Prospectus prepared by or on behalf of such Underwriter that such Underwriter would not
otherwise have been required to so file.
(i) The Company will not, without the prior written consent of the Representatives,
offer, sell, contract to sell, pledge, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or indirectly, including
the filing (or participation in the filing) of a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange Act, any debt
securities issued or guaranteed by the Company (other than the Securities) or publicly
announce an intention to effect any such transaction, until the Business Day set forth on
Schedule I hereto.
(j) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
10
(k) The Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (ii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus, and all amendments or supplements to any of them,
as may, in each case, be reasonably requested for use in connection with the offering and
sale of the Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (v) any registration or qualification of the Securities for
offer and sale under the securities or blue sky laws of the several states (including filing
fees and the reasonable fees and expenses of counsel for the Underwriters relating to such
registration and qualification); (vi) any filings required to be made with the NASD, Inc.
(including filing fees and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (vii) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to prospective purchasers
of the Securities; (viii) the fees and expenses of the Companys accountants and the fees
and expenses of counsel (including local and special counsel) for the Company; and (ix) all
other costs and expenses incident to the performance by the Company of its obligations
hereunder.
6.
Conditions to the Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner and
within the time period required by Rule 424(b); the final term sheet contemplated by Section
5(b) hereto, and any other material required to be filed by the Company pursuant to Rule
433(d) under the Act, shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; and no stop order suspending the
effectiveness of the Registration Statement or any notice objecting to its use shall have
been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Orrick, Herrington & Sutcliffe LLP,
counsel for the Company, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, to the effect that:
11
(i) the Registration Statement has become effective under the Act; to the
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have been
threatened or instituted by, or are pending before, the Commission, and the
Registration Statement and the Final Prospectus (other than the financial statements
and other financial and statistical information contained therein, as to which such
counsel need express no opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder;
(ii) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of California, with the
corporate power and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the Registration Statement,
the Disclosure Package and the Final Prospectus;
(iii) the Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery thereof by the Trustee constitutes a valid and
binding obligation of the Company enforceable against the Company in accordance with
its terms (subject, to the effect of any bankruptcy, reorganization, insolvency,
arrangement, fraudulent conveyance, moratorium, receivership, assignment for the
benefit of creditors or other laws affecting creditors rights generally from time
to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at law); and the
Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will have been validly issued and
delivered, will be entitled to the benefits of the Indenture and will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms;
(iv) to the knowledge of such counsel, there is no pending or threatened
action, suit or proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its subsidiaries or its or
their property, of a character required to be disclosed in the Registration
Statement other than those disclosed in any Preliminary Prospectus and the Final
Prospectus (in rendering such opinion, such counsel may note that it has not
conducted searches of the dockets of any court or administrative agency whatsoever);
(v) this Agreement has been duly authorized, executed and delivered by the
Company;
(vi) the Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
12
Disclosure Package and the Final Prospectus, will not be an investment company as
defined in the 1940 Act or a company controlled by an investment company within
the meaning of the 1940 Act;
(vii) none of the issue or sale of the Securities, the consummation of the
transactions contemplated by this Agreement or the performance by the Company of its
obligations hereunder will (A) conflict with or result in any violation of (1) the
Articles of Incorporation or Bylaws of the Company, or (2) any Federal, California
or, as to this Agreement, New York, statute or any rule or regulation issued
pursuant to any Federal, California or, as to this Agreement, New York statute,
including, without limitation, the California Public Utilities Code and California
usury laws (Applicable Laws), or any order known to such counsel to have been
issued pursuant to any Applicable Law by any Federal, California or, as to this
Agreement, New York, court or governmental agency or body that such counsel has in
the exercise of customary professional diligence recognized as having jurisdiction
over the Company or any of its properties (Applicable Governmental Authority) or
(B) result in a breach or violation of, or constitute a default under, any
agreement, indenture or other instrument to which the Company or any of its
subsidiaries is a party that has been filed pursuant to Section 601(b)(4) or Section
601(b)(10) of Regulation S-K as exhibits to the Companys Annual Report on Form 10-K
for the year ended December 31, 2006 or to any report on Form 8-K filed by the
Company between January 1, 2007 and the Closing Date; and
(viii) no consent, approval, authorization, filing with or order of or with any
Applicable Governmental Authority (a Governmental Action) is required for the
valid authorization, execution, issuance, sale and delivery of the Securities by the
Company except for any Governmental Actions that have been obtained, and such as may
be required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement, the Disclosure Package and the Final Prospectus.
The letter from such counsel shall include a separate paragraph to the effect
that in the course of its engagement as counsel to the Company in connection with
the offering of the Securities, it has participated in conferences with the
Underwriters and their representatives and representatives of the Company and its
accountants concerning the Registration Statement, the Disclosure Package and the
Final Prospectus and considered the matters required to be stated therein and the
statements contained therein, and, although they were not engaged to and did not
independently verify the accuracy, completeness or fairness of such statements, and
based upon and subject to the foregoing, such
counsel will advise the Underwriters, as a matter of fact and not opinion, that
nothing came to such counsels attention to cause them to believe that (A) the
Registration Statement, as of each Effective Date 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, (B) the Final Prospectus,
13
as of its date and as of the Closing Date contained or contains an untrue statement
of a material fact or omitted or omits 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, or (C) the Disclosure Package, as of the Execution Time,
contained an untrue statement of a material fact or omitted 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 it is understood
that such counsel is not requested to and will not express any belief in this
paragraph with respect to the financial statements, schedules and other financial
data contained in or incorporated by reference in the Registration Statement, the
Disclosure Package, the Final Prospectus or the Statement of Eligibility and
Qualification of the Trustee.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of California, New York or the
Federal laws of the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in this paragraph (b) shall also
include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Skadden, Arps, Slate, Meagher & Flom
LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and
addressed to the Representatives, with respect to the issuance and sale of the Securities,
the Indenture, the Registration Statement, the Disclosure Package, the Final Prospectus
(together with any supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the
Company, signed by the Chairman of the Board, the Chief Executive Officer, the President or
any Senior Vice President and by the Chief Financial Officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully examined the
Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or
amendments thereto, as well as each electronic road show used in connection with the
offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement
or any notice objecting to its use has been issued and no proceedings
14
for that
purpose have been instituted or, to the Companys knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Effect, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished
to the Representatives, at the Execution Time and at the Closing Date, letters (which may
refer to letters previously delivered to one or more of the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable rules and
regulations adopted by the Commission thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial statement
schedules included or incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus and reported on by them comply as to
form with the applicable accounting requirements of the Act and the Exchange Act and
the related rules and regulations adopted by the Commission;
(ii) carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth in such
letter; and inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to December 31, 2006, nothing came to their
attention which caused them to believe that, with respect to the period subsequent
to December 31, 2006, there were any changes, at a specified date not more than five
days prior to the date of the letter, in the long-term debt or short-term borrowings
of the Company and its subsidiaries or the capital stock of the Company or decreases
in current assets or the shareholders equity of the Company, as compared with the
amounts shown on the December 31, 2006 consolidated balance sheet included or
incorporated by reference in the Registration Statement, the Preliminary Prospectus
and the Final Prospectus, or for the period from January 1, 2007 to such specified
date there were any decreases, as compared with the corresponding period in the
preceding year in
operating revenues, net revenues, income before income taxes or net income of
the Company and its subsidiaries, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless said explanation is
not deemed necessary by the Representatives; and
15
(iii) they have performed certain other specified procedures as a result of
which they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement, the Preliminary Prospectus
and the Final Prospectus and in Exhibit 12 to the Registration Statement, including
the information set forth under the captions Ratio of Earnings to Fixed Charges,
Capitalization and Recent Developments in the Preliminary Prospectus and the
Final Prospectus, the information included or incorporated by reference in Items 1,
1A, 6, 7 and 7A of the Companys Annual Report on Form 10-K, incorporated by
reference in the Registration Statement, the Preliminary Prospectus and the Final
Prospectus, agrees with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Final Prospectus in this paragraph (e) include any supplement thereto
at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)
any material change or decrease specified in the letter or letters referred to in paragraph
(e) of this Section 6 or (ii) any change, or any development involving a prospective change,
in or affecting the condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of
the Representatives, so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof), the Disclosure Package and the Final
Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the
rating of any of PG&E Corporations or the Companys debt securities by any nationally
recognized statistical rating organization (as defined for purposes of Rule 436(g) under
the Act) or any notice given of any intended or potential decrease in any such rating or of
a possible change in any such rating that does not indicate the direction of the possible
change.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as
provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance
16
to the Representatives
and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 shall be delivered at the office of
Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, at Four Times Square, New
York, New York, on the Closing Date.
7.
Reimbursement of Underwriters Expenses
. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the Underwriters set
forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally through Citigroup Global
Markets Inc. on demand for all expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase and sale of the
Securities.
8.
Indemnification and Contribution
. (a) The Company agrees to indemnify and
hold harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, as of November 3, 2005 (the date of the first post-effective
amendment thereto) or in any subsequent amendment thereof, or in the Base Prospectus, any
Preliminary Prospectus or any other preliminary prospectus supplement relating to the
Securities, the Final Prospectus, any Issuer Free Writing Prospectus or the information
contained in the final term sheet required to be prepared and filed pursuant to Section 5(b)
hereto, or in any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action;
provided
,
however
, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company may
otherwise have.
17
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth (i) in the last paragraph of
the cover page regarding delivery of the Securities, (ii) under the heading Underwriting,
(A) the list of Underwriters and their respective participation in the sale of the
Securities, (B) the sentences related to concessions and reallowances and (C) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to
the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying partys choice
at the indemnifying partys expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party shall not thereafter
be responsible for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below);
provided
,
however
, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
partys election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably concluded that
there may be legal defenses
available to it and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. It is understood that the indemnifying party shall
18
not,
in connection with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate counsel (in addition to one local
counsel) for all such indemnified parties. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim, action, suit or
proceeding,. No indemnifying party will be liable for any settlement of any such action
effected without its prior written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending the same) (collectively Losses) to
which the Company and one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company on the one hand and
by the Underwriters on the other from the offering of the Securities;
provided
,
however
, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information provided by
the Company on the one hand or the Underwriters on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata allocation or
any other method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
19
the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of either the Act
or the Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this paragraph (d).
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as the Representatives
shall determine in order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute
discretion of the Representatives, by notice given to the Company prior to delivery of and payment
for the Securities, if at any time prior to such delivery and payment: (a) (i) trading in the
common stock of PG&E Corporation shall have been suspended by the Commission or the New York Stock
Exchange, (ii) trading in any series of the preferred stock of the Company shall have been
suspended by the Commission or the American Stock Exchange, (iii) (A) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange shall have been suspended
or limited, (B) minimum prices shall have been established on either of such exchanges, or (C)
there shall have been a material disruption in the clearance or settlement of securities generally
on either of such exchanges which makes it, in the sole judgment of the
Representatives,
20
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any
amendment or supplement thereto), (b) a banking moratorium shall have been declared either by
Federal, California or New York State authorities
,
(c) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis which makes it, in the sole judgment of the Representatives, impractical
or inadvisable to proceed with the offering or delivery of the Securities as contemplated by any
Preliminary Prospectus or the Final Prospectus (exclusive of any amendment or supplement thereto),
or (d) there shall have been such a material adverse change in general economic, political or
financial conditions or the financial markets in the United States which makes it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by any Preliminary Prospectus or the Final Prospectus
(exclusive of any amendment or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12.
Notices
. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed to (i)
Barclays Capital Inc., Attention: Fixed Income Syndicate Desk (fax no.: (212) 412-7305) and
confirmed to Barclays Capital Inc., Attention: Fixed Income Syndicate Desk at 200 Park Avenue, New
York, New York 10166, (ii) Citigroup Global Markets Inc. General Counsel (fax no.: (212) 816-7912)
and confirmed to Citigroup Global Markets Inc. General Counsel, Citigroup Global Markets Inc. at
388 Greenwich Street, New York, New York, 10013, Attention: General Counsel, and (iii) Deutsche
Bank Securities Inc., Attention: Debt Capital Markets Syndicate Desk (fax no.: (212) 797 2202 and
Deutsche Bank Securities Inc. General Counsel (fax no.: (212) 797-4564) and confirmed to Deutsche
Bank Securities Inc., Attention: Debt Capital Markets Syndicate Desk at 60 Wall Street, New York,
New York 10005; or, if sent to the Company, will be mailed, delivered or telefaxed to the Companys
General Counsel (fax no.: (415) 267-7257) and confirmed to the Companys General Counsel, PG&E
Corporation, at One Market, Spear Tower, Suite 2400, San Francisco, California 94105, Attention:
General Counsel.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation hereunder.
14.
No fiduciary duty
. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arms-length commercial transaction between the
Company, on the one hand, and the Underwriters and any affiliate through which it may be acting, on
the other, (b) the Underwriters are acting as principal and not as an agent or fiduciary of the
Company and (c) the Companys engagement of the Underwriters
in connection with the offering and the process leading up to the offering is as
independent contractors and not in any other capacity. Furthermore, the Company agrees that it is
solely responsible for making its own judgments in connection with the offering (irrespective of
whether any of the Underwriters has advised or is currently advising the Company on related or
other matters). The Company agrees that it will not claim that the Underwriters have rendered
21
advisory services of any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto.
15.
Integration
. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
16.
Applicable Law
. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17.
Waiver of Jury Trial
. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
18.
Counterparts
. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
19.
Headings
. The section headings used herein are for convenience only and shall not
affect the construction hereof.
20.
Definitions
. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
Act shall mean the Securities Act of 1933, as amended and the rules and regulations
of the Commission promulgated thereunder.
Base Prospectus shall mean the base prospectus referred to in paragraph 1(a) above
contained in the Registration Statement at the Execution Time.
Business Day shall mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are authorized or obligated by law to
close in New York City.
Closing Date shall mean March 13, 2007.
Commission shall mean the Securities and Exchange Commission.
Disclosure Package shall mean (i) the Base Prospectus, (ii) the Preliminary
Prospectus used most recently prior to the Execution Time, (iii) the Issuer Free Writing
Prospectuses, if any, identified in Schedule III hereto, (iv) the final term sheet prepared
and filed pursuant to Section 5(b) hereto, if any, and (v) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in writing to treat
as part of the Disclosure Package.
Effective Date shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto became or becomes effective.
22
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Execution Time shall mean 4:16 p.m. Eastern time on the date of this Agreement.
Final Prospectus shall mean the prospectus supplement relating to the Securities that
was first filed pursuant to Rule 424(b) after the Execution Time, together with the Base
Prospectus.
Free Writing Prospectus shall mean a free writing prospectus, as defined in Rule 405.
Issuer Free Writing Prospectus shall mean an issuer free writing prospectus, as
defined in Rule 433.
Preliminary Prospectus shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the
Final Prospectus, together with the Base Prospectus.
Registration Statement shall mean the registration statement referred to in paragraph
1(a) above, including exhibits and financial statements and any prospectus supplement
relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and
deemed part of such registration statement pursuant to Rule 430B, as amended on each
Effective Date and, in the event any post-effective amendment thereto becomes effective
prior to the Closing Date, shall also mean such registration statement as so amended.
Rule 158, Rule 163, Rule 164, Rule 172, Rule 405, Rule 415, Rule 424,
Rule 430B and Rule 433 refer to such rules under the Act.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended and the
rules and regulations of the Commission promulgated thereunder.
Well-Known Seasoned Issuer shall mean a well-known seasoned issuer, as defined in
Rule 405.
23
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
|
|
|
|
|
|
Very truly yours,
Pacific Gas and Electric Company
|
|
|
By:
|
/s/ Nicholas M. Bijur
|
|
|
|
Name:
|
Nicholas M. Bijur
|
|
|
|
Title:
|
Assistant Treasurer
|
|
|
The foregoing Agreement is hereby confirmed and
accepted as of the date specified in Schedule I hereto.
Barclays Capital Inc.
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
|
|
|
By: Barclays Capital Inc.
|
|
|
|
|
|
By: /s/ Pamela Kendall
|
|
|
Name: Pamela Kendall
|
|
|
Title: Director
|
|
|
|
|
|
By: Citigroup Global Markets Inc.
|
|
|
|
|
|
By: /s/ Brian Bednarski
|
|
|
Name: Brian Bednarski
|
|
|
Title: Director
|
|
|
|
|
|
By: Deutsche Bank Securities Inc.
|
|
|
|
|
|
By: /s/ Ryan Montgomery
|
|
|
Name: Ryan Montgomery
|
|
|
Title: Director
|
|
|
|
|
|
By: /s/ Ben Smilchensky
|
|
|
Name: Ben Smilchensky
|
|
|
Title: Managing Director
|
|
|
For themselves and the other several Underwriters, if any,
named in Schedule II to the foregoing Agreement.
24
SCHEDULE I
Underwriting Agreement dated March 8, 2007
Registration Statement No. 333-109994
|
|
|
Representative(s):
|
|
Barclays Capital Inc.
|
|
|
Citigroup Global Markets Inc.
|
|
|
Deutsche Bank Securities Inc.
|
Title, Purchase Price and Description of Securities:
Title:
5.80% Senior Notes Due March 1, 2037
Principal
amount:
$700,000,000
Purchase price (include accrued interest or amortization, if any):
98.579%
Sinking fund provisions:
Not applicable.
Redemption provisions:
At the Companys option, the 5.80% Senior Notes Due March 1, 2037
(the Securities) may be redeemed in whole or in part at any time at a redemption price
equal to the greater of: (1) 100% of the principal amount of the Securities to be redeemed,
plus accrued interest on those Securities to the redemption date, or (2) as determined by
the Quotation Agent (as defined in the Preliminary Prospectus), the sum of the present
values of the remaining scheduled payments of principal and interest on the Securities to be
redeemed (not including any portion of payments of interest accrued as of the redemption
date) discounted to the redemption date on a semi-annual basis at the Adjusted Treasury Rate
(as defined in the Preliminary Prospectus) plus 25 basis points, plus accrued interest, in
either case, on those Securities to the redemption date. The redemption price will be
calculated assuming a 360-day year consisting of twelve 30-day months.
Other provisions:
Not applicable.
Closing Date, Time and Location:
March 13, 2007 at 10:00 a.m. at Skadden, Arps, Slate, Meagher &
Flom LLP, Four Times Square, New York, NY 10036
Type of Offering:
Non-delayed
Date referred to in Section 5(i) after which the Company may offer or sell debt securities issued
or guaranteed by the Company without the consent of the Representative(s): 7 days
Modification of items to be covered by the letter from Deloitte & Touche LLP delivered pursuant to
Section 6(e) at the Execution Time:
SCHEDULE II
|
|
|
|
|
|
|
Principal Amount
|
|
|
|
of Securities to
|
|
Underwriters
|
|
be Purchased
|
|
Barclays Capital Inc.
|
|
$
|
186,667,000
|
|
Citigroup Global Markets Inc.
|
|
$
|
186,667,000
|
|
Deutsche Bank Securities Inc.
|
|
$
|
186,666,000
|
|
ABN AMRO Incorporated
|
|
$
|
52,500,000
|
|
BNY Capital Markets, Inc.
|
|
$
|
52,500,000
|
|
Loop Capital Markets, LLC
|
|
$
|
17,500,000
|
|
The Williams Capital Group, L.P.
|
|
$
|
17,500,000
|
|
|
|
|
|
Total
|
|
$
|
700,000,000
|
|
|
|
|
|
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
SCHEDULE IV
Filed Pursuant to Rule 433
Registration No. 333-109994
March 8, 2007
PRICING TERM SHEET
5.80% Senior Notes due March 1, 2037
|
|
|
Issuer:
|
|
Pacific Gas and Electric Company
|
|
|
|
Security:
|
|
5.80% Senior Notes due March 1, 2037
|
|
|
|
Size:
|
|
$700,000,000
|
|
|
|
Maturity Date:
|
|
March 1, 2037
|
|
|
|
Coupon:
|
|
5.80%
|
|
|
|
Interest Payment Dates:
|
|
March 1 and September 1, commencing September 1,
2007
|
|
|
|
Price to Public:
|
|
99.454%
|
|
|
|
Benchmark Treasury:
|
|
4.50% due February 15, 2036
|
|
|
|
Benchmark Treasury Yield:
|
|
4.679%
|
|
|
|
Spread to Benchmark Treasury:
|
|
116 basis points
|
|
|
|
Yield:
|
|
5.839%
|
|
|
|
Optional Redemption:
|
|
Make-Whole Call at Treasuries plus 25 basis points
|
|
|
|
Expected Settlement Date:
|
|
March 13, 2007
|
|
|
|
CUSIP:
|
|
694308 GJ0
|
|
|
|
Anticipated Ratings:
|
|
Baa1 by Moodys Investors Service, Inc.
|
|
|
BBB by Standard & Poors Ratings Services
|
|
|
|
Joint Book-Running Managers:
|
|
Barclays Capital Inc.
|
|
|
Citigroup Global Markets Inc.
|
|
|
Deutsche Bank Securities Inc.
|
|
|
|
Co-Managers:
|
|
ABN AMRO Incorporated
|
|
|
BNY Capital Markets, Inc.
|
|
|
Loop Capital Markets, LLC
|
|
|
The Williams Capital Group, L.P.
|
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling Barclays Capital Inc. toll free at 1-888-
227-2275, Ext. 2663;
Citigroup Global Markets Inc. toll free at 1-877-858-5407; or Deutsche Bank
Securities Inc. toll free at 1-800-503-4611.
Exhibit 4.1
EXECUTION COPY
First Supplemental Indenture
Dated as of March 13, 2007
Supplement to the Amended and Restated Indenture
Dated as of April 22, 2005
PACIFIC GAS AND ELECTRIC COMPANY
Issuer
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.
Trustee
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE I
|
|
DEFINITIONS
|
|
|
1
|
|
ARTICLE II
|
|
ESTABLISHMENT OF THE 5.80% SENIOR NOTES
|
|
|
3
|
|
SECTION
|
|
201
|
|
Establishment and Designation of the 5.80% Senior Notes
|
|
|
3
|
|
SECTION
|
|
202
|
|
Form of the 5.80% Senior Notes
|
|
|
3
|
|
SECTION
|
|
203
|
|
Principal Amount of the 5.80% Senior Notes
|
|
|
3
|
|
SECTION
|
|
204
|
|
Interest Rates; Stated Maturity of the 5.80% Senior Notes
|
|
|
3
|
|
SECTION
|
|
205
|
|
No Sinking Fund
|
|
|
3
|
|
SECTION
|
|
206
|
|
Paying Agent and Bond Registrar
|
|
|
4
|
|
SECTION
|
|
207
|
|
Global Securities; Appointment of Depositary for Global Securities
|
|
|
4
|
|
SECTION
|
|
208
|
|
Other Terms of the 5.80% Senior Notes
|
|
|
4
|
|
ARTICLE III
|
|
OPTIONAL REDEMPTION BY COMPANY
|
|
|
4
|
|
SECTION
|
|
301
|
|
Optional Redemption
|
|
|
4
|
|
SECTION
|
|
302
|
|
Calculation of Redemption Price
|
|
|
5
|
|
SECTION
|
|
303
|
|
Notice of Redemption
|
|
|
5
|
|
ARTICLE IV
|
|
MISCELLANEOUS
|
|
|
5
|
|
SECTION
|
|
401
|
|
Application of First Supplemental Indenture
|
|
|
5
|
|
SECTION
|
|
402
|
|
Effective Date of First Supplemental Indenture
|
|
|
5
|
|
SECTION
|
|
403
|
|
Counterparts
|
|
|
5
|
|
EXHIBIT A
|
|
|
|
|
|
|
|
|
i
FIRST SUPPLEMENTAL INDENTURE, dated as of March 13, 2007 (this First Supplemental
Indenture), by and between
PACIFIC GAS AND ELECTRIC COMPANY
, a corporation duly organized and
existing under the laws of the State of California (the Company or the Issuer), and
THE BANK OF
NEW YORK TRUST COMPANY
,
N.A.,
a national banking association organized and existing under the laws
of the United States of America, as Trustee under the Base Indenture (as hereinafter defined) (the
Trustee).
RECITALS OF THE COMPANY
A. The Company and the Trustee are parties to that certain Amended and Restated Indenture,
dated as of April 22, 2005 (the Base Indenture and together this First Supplemental Indenture,
the Indenture), which supplements, amends and restates that certain Indenture of Mortgage, dated
as of March 11, 2004, as supplemented by the First Supplemental Indenture thereto, dated as of
March 23, 2004 and the Second Supplemental Indenture thereto, dated as of April 12, 2004, providing
for the issuance by the Company of an unlimited number of series of Bonds (as defined in the
Indenture) from time to time.
B. Under the Base Indenture, the Company is authorized to establish one or more series of
Bonds at any time in accordance with and subject to the provisions of the Base Indenture, and the
terms of such series of Bonds may be described by a supplemental indenture executed by the Company
and the Trustee.
C. The execution and delivery of this First Supplemental Indenture has been authorized by a
Board Resolution (as defined in the Base Indenture).
D. Concurrent with the execution hereof, the Company has caused its counsel to deliver to the
Trustee an Opinion of Counsel (as defined in the Base Indenture) pursuant to Section 13.03 of the
Base Indenture.
E. The Company has done all things necessary to make this First Supplemental Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, the Company and the Trustee agree, for the benefit of each other and for the
equal and proportionate benefit of Holders of the 5.80% Senior Notes (as defined below) with
respect to all provisions herein, as follows:
ARTICLE I
DEFINITIONS
Unless the context otherwise requires, capitalized terms used but not defined herein have the
meaning set forth in the Indenture. The following additional terms are hereby established for
purposes of this First Supplemental Indenture and shall have the meanings set forth in this First
Supplemental Indenture only for purposes of this First Supplemental Indenture:
5.80% Senior Notes
has the meaning set forth in Section 201 hereto.
Adjusted Treasury Rate
means, with respect to any Redemption Date, the rate per annum equal
to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
Comparable Treasury Issue
means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the 5.80% Senior Notes
that would be used, at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to the remaining term of
the 5.80% Senior Notes.
Comparable Treasury Price
means, with respect to any Redemption Date, (1) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest of the Reference Treasury Dealer Quotations or (2) if the Company obtains fewer than four
Reference Treasury Dealer Quotations, the average of all Reference Treasury Dealer Quotations so
received.
Primary Treasury Dealer
means a primary U.S. Government Securities dealer in the United
States.
Quotation Agent
means the Reference Treasury Dealer appointed by the Company.
Redemption Price
has the meaning set forth in Section 301 hereto.
Reference Treasury Dealer
means (1) each of Barclays Capital Inc., Citigroup Global Markets
Inc. and Deutsche Bank Securities Inc. and their respective successors, unless any of them ceases
to be a Primary Treasury Dealer, in which case the Company shall substitute another Primary
Treasury Dealer; and (2) any other Primary Treasury Dealer selected by the Company.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Company, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Company by that Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third Business Day preceding such Redemption Date. For purposes of this definition
only,
"
Business Day
means any day that is not a day on which banking institutions in New York City
are authorized or required by law or regulation to close.
Remaining Scheduled Payments
means, with respect to each of the 5.80% Senior Notes that the
Company is redeeming pursuant to Section 301 hereto, the remaining scheduled payments of principal
and interest that would be due after the applicable Redemption Date if such 5.80% Senior Notes were
not redeemed. However, if the Redemption Date is not a scheduled Interest Payment Date with
respect to such 5.80% Senior Notes, the amount of the next succeeding scheduled interest payment on
such 5.80% Senior Notes will be reduced by the amount of interest accrued on such 5.80% Senior
Notes to the Redemption Date.
U.S. Government Securities
means securities which are (a) direct obligations of the United
States of America for the payment on which its full faith and credit is pledged or (b) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of
2
the United States of America the payment of which is unconditionally guaranteed as a full
faith and credit obligation of the United States of America, and which in the case of (a) and (b)
are not callable or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect to any such U.S.
Government Security or a specific payment of interest on or principal of any such U.S. Government
Security held by such custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Security evidenced by such depository receipt.
The words herein, hereof and hereunder and other words of similar import refer to this
First Supplemental Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II
ESTABLISHMENT OF THE 5.80% SENIOR NOTES
SECTION 201
Establishment and Designation of the 5.80% Senior Notes.
Pursuant to the terms hereof and Section 3.01 of the Indenture, the Company hereby establishes
a twenty-second series of Bonds designated as the 5.80% Senior Notes due March 1, 2037 (the
5.80% Senior Notes). The 5.80% Senior Notes may be reopened, from time to time, for issuances of
additional Bonds of such series, and any additional Bonds issued and comprising 5.80% Senior Notes
shall have identical terms as the 5.80% Senior Notes, except that the issue price, issue date and,
in some cases, the first Interest Payment Date may differ.
SECTION 202
Form of the 5.80% Senior Notes.
The 5.80% Senior Notes shall be issued in the form of one or more Global Bonds in
substantially the form set forth in
Exhibit A hereto
.
SECTION 203
Principal Amount of the 5.80% Senior Notes.
The 5.80% Senior Notes shall be issued in an initial aggregate principal amount of
$700,000,000.
SECTION 204
Interest Rates; Stated Maturity of the 5.80% Senior Notes.
The 5.80% Senior Notes shall bear interest at the rate of 5.80% per annum and shall have a
Stated Maturity of March 1, 2037.
SECTION 205
No Sinking Fund.
No sinking fund is provided for the 5.80% Senior Notes.
3
SECTION 206
Paying Agent and Bond Registrar.
The Trustee is hereby appointed as initial Paying Agent and initial Bond Registrar for the
5.80% Senior Notes. The Place of Payment of the 5.80% Senior Notes shall be the Corporate Trust
Office of the Trustee.
SECTION 207
Global Securities; Appointment of Depositary for Global Securities.
The 5.80% Senior Notes shall be issued in the form of one or more permanent Global Bonds as
provided in Section 3.13 of the Indenture and deposited with, or on behalf of, the Depositary, or
with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated
by the Trustee.
The Company hereby initially appoints The Depository Trust Company (
DTC
) to act as the
Depositary with respect to all 5.80% Senior Notes, and the 5.80% Senior Notes shall initially be
registered in the name of Cede & Co., as the nominee of DTC.
The Trustee is hereby authorized and requested to execute and deliver a Letter of
Representations to DTC relating to the 5.80% Senior Notes and, in connection with any successor
nominee for DTC or any successor Depositary, enter into comparable arrangements, and shall have the
same rights with respect to its actions thereunder as it has with respect to its actions under the
Indenture.
None of the Company, the Trustee, any Paying Agent or any Bond Registrar will have any
responsibility or liability for any aspect of Depositary records relating to, or payments made on
account of, beneficial ownership interests in a Global Bond or for maintaining, supervising or
reviewing any Depositary records relating to such beneficial ownership interests, or for transfers
of beneficial interests in the Bonds or any transactions between the Depositary and beneficial
owners.
SECTION 208
Other Terms of the 5.80% Senior Notes.
The other terms of the 5.80% Senior Notes shall be as expressly set forth herein and in
Exhibit A
.
ARTICLE III
OPTIONAL REDEMPTION BY COMPANY
SECTION 301
Optional Redemption
Optional Redemption of 5.80% Senior Notes
. Subject to the terms and conditions of the
Indenture, the 5.80% Senior Notes are redeemable at the option of the Company in whole or in part
at any time at a redemption price equal to the greater of:
4
(a) 100% of the principal amount of the 5.80% Senior Notes to be redeemed; or
(b) as determined by the Quotation Agent, the sum of the present values of the Remaining
Scheduled Payments of principal and interest on the 5.80% Senior Notes to be redeemed (not
including any portion of payments of interest accrued as of the Redemption Date) discounted to the
Redemption Date on a semi-annual basis at the Adjusted Treasury Rate, plus 25 basis points;
plus, in either of the above cases, accrued and unpaid interest thereon to but not including the
Redemption Date (the Redemption Price). The Redemption Price shall be calculated assuming a
360-day year consisting of twelve 30-day months.
SECTION 302
Calculation of Redemption Price.
The Company shall calculate the
Redemption Price for any redemption of Senior Notes pursuant to Section 301 and notify the Trustee
of such Redemption Price before it sends the amount of the Redemption Price to the Trustee or any
Paying Agent.
SECTION 303
Notice of Redemption
. Notice of any redemption pursuant to Section 301
shall be given in the manner and at the time set forth in Section 6.04 of the Indenture; provided,
however, that such notice need not state the dollar amount of the Redemption Price if such dollar
amount has not been determined as of the date such notice is being given to the Holders of the
5.80% Senior Notes being redeemed.
ARTICLE IV
MISCELLANEOUS
SECTION 401
Application of First Supplemental Indenture.
Except as provided herein, each and every term and condition contained in this First
Supplemental Indenture that modifies, amends or supplements the terms and conditions of the
Indenture shall apply only to 5.80% Senior Notes established hereby and not to any other series of
Bonds established under the Indenture. Except as specifically amended and supplemented by, or to
the extent inconsistent with, this First Supplemental Indenture, the Indenture shall remain in full
force and effect and is hereby ratified and confirmed.
SECTION 402
Effective Date of First Supplemental Indenture.
This First Supplemental Indenture shall be effective upon the execution and delivery hereof by
each of the parties hereto.
SECTION 403
Counterparts.
This First Supplemental Indenture 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.
5
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed by their respective officers hereunto duly authorized, all as of the day and year
first above written.
|
|
|
|
|
|
PACIFIC GAS AND ELECTRIC COMPANY
,
as Issuer
|
|
|
By:
|
/s/ Thomas B. King
|
|
|
|
Name:
|
Thomas B. King
|
|
|
|
Title:
|
Chief Executive Officer
|
|
|
|
|
|
|
|
|
THE BANK OF NEW YORK TRUST COMPANY
,
N.A.
as Trustee
|
|
|
By:
|
/s/ Josephine Libunao
|
|
|
|
Name:
|
Josephine Libunao
|
|
|
|
Title:
|
Vice President
|
|
|
[Signature page to First Supplemental Indenture]
EXHIBIT A
FORM OF SENIOR NOTE
THIS SENIOR NOTE IS A BOND AND A GLOBAL BOND WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SENIOR NOTES IN DEFINITIVE FORM, THIS SENIOR NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS SENIOR NOTE CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SENIOR NOTE CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH ON THE REVERSE HEREOF:
|
|
|
|
|
PRINCIPAL AMOUNT :
$[
]
|
|
ORIGINAL ISSUE DATE:
March 13, 2007
|
|
INTEREST RATE: 5.80
%
per annum
|
|
|
|
|
|
MATURITY DATE:
|
|
INTEREST PAYMENT DATES:
|
|
THIS SENIOR NOTE IS A:
|
|
|
|
|
þ
Global Book-Entry Bond
|
March 1, 2037
|
|
March 1 and September 1, commencing
September 1, 2007
|
|
o
Certificated Bond
|
|
|
|
|
|
REGISTERED OWNER: Cede & Co., as
nominee of The Depository Trust Company
|
|
|
|
|
- 1 -
PACIFIC GAS AND ELECTRIC COMPANY
5.80% SENIOR NOTES DUE MARCH 1, 2037
(Fixed Rate)
|
|
|
No. R-
CUSIP No: 694308 GJ0
|
|
Principal Amount:$[
]
|
PACIFIC GAS AND ELECTRIC COMPANY, a corporation duly organized and existing under the laws of
the State of California (herein called the Company, which term includes any successor Person
pursuant to the applicable provisions of the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., as nominee for The Depository Trust Company, or
registered assigns, the Principal Amount stated above on the Maturity Date stated above, and to pay
interest thereon from and including the Original Issue Date stated above or, in the case of a 5.80%
Senior Note Due March 1, 2037 issued upon the registration of transfer or exchange, from and
including the most recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on the Interest Payment Dates set forth above and on the Maturity
Date stated above, commencing September 1
,
2007 at the rate of 5.80% per annum until the principal
hereof is paid or made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this 5.80% Senior Note Due March 1, 2037 (this Senior Note, and together
with all other 5.80% Senior Notes Due March 1, 2037, the Senior Notes) (or one or more
Predecessor Bonds) is registered at the close of business on the Regular Record Date for such
interest, which shall be the 15th day of the month next preceding such Interest Payment Date;
provided, however, that interest payable at the Maturity Date or on a Redemption Date will be paid
to the Person to whom principal is payable. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Senior Note (or one or more Predecessor Bonds) is
registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Senior Notes not
less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of the Indenture and any securities exchange, if any,
on which the Senior Notes may be listed, and upon such notice as may be required by any such
exchange, all as more fully provided in said Indenture.
Payments of interest on this Senior Note will include interest accrued to but excluding the
respective Interest Payment Dates. Interest payments for this Senior Note shall be computed and
paid on the basis of the 360-day year of twelve 30-day months and will accrue from March 13, 2007
or from the most recent Interest Payment Date to which interest has been paid or duly provided for.
In the event that any date on which interest is payable on this Senior Note (other than the
Maturity Date) is not a Business Day then payment of the interest payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
- 2 -
payment in respect of any such delay) with the same force and effect as if made on the date
the payment was originally payable. If the Maturity Date falls on a day that is not a Business
Day, the payment of principal, premium, if any, and interest may be made on the next succeeding
Business Day, and no interest on such payment shall accrue for the period from and after maturity.
Payment of principal of, premium, if any, and interest on Senior Notes shall be made in such
coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts. Payments of principal of, premium, if any, and interest on
the Senior Notes represented by a Global Bond shall be made by wire transfer of immediately
available funds to the Holder of such Global Bond, provided that, in the case of payments of
principal and premium, if any, such Global Bond is first surrendered to the Paying Agent. If any
of the Senior Notes are no longer represented by a Global Bond, (i) payments of principal, premium,
if any, and interest due on the Maturity Date or earlier redemption of such Senior Notes shall be
made at the office of the Paying Agent upon surrender of such Senior Notes to the Paying Agent, and
(ii) payments of interest shall be made, at the option of the Company, subject to such surrender
where applicable, (A) by check mailed to the address of the Person entitled thereto as such address
shall appear in the Bond Register or (B) by wire transfer to registered Holders of at least
$10,000,000 in principal amount of Senior Notes at such place and to such account at a banking
institution in the United States as such Holders may designate in writing to the Trustee at least
sixteen (16) days prior to the date for payment.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SENIOR NOTE SET FORTH ON THE
REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET
FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Senior Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
- 3 -
In Witness Whereof
, the Company has caused this instrument to be duly executed.
Dated: March 13
,
2007
|
|
|
|
|
|
PACIFIC GAS AND ELECTRIC COMPANY
|
|
|
By:
|
|
|
|
|
Thomas B. King, Chief Executive Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
Nicholas M. Bijur, Assistant Treasurer
|
|
|
|
|
|
|
- 4 -
TRUSTEES CERTIFICATE OF AUTHENTICATION
This Senior Note is one of the Bonds of the series designated as Bonds of the Twenty-Second
Series referred to in the within-mentioned Indenture.
Dated: March 13, 2007
|
|
|
|
|
|
THE BANK OF NEW YORK TRUST
COMPANY, N.A.,
As Trustee
|
|
|
By:
|
|
|
|
|
Authorized Signatory
|
|
|
|
|
|
|
- 5 -
Reverse of Senior Note
This 5.80% Senior Note Due March 1, 2037 is one of a duly authorized issue of Bonds of the
Company, issued and issuable in one or more series under an Amended and Restated Indenture, dated
as of April 22, 2005, as supplemented by a First Supplemental Indenture, dated as of March 13
,
2007, (together with all additional indentures supplemental thereto, and any constituent
instruments establishing the terms of particular Bonds, being herein called the Indenture),
between the Company and The Bank of New York Trust Company, N.A., as Trustee (herein called the
Trustee, which term includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a description of the respective rights, limitations of rights, duties and
immunities of the Company, the Trustee and the Holders of Bonds thereunder and of the terms and
conditions upon which Bonds are, and are to be, authenticated and delivered. This Senior Note is a
Bond within the meaning of the Indenture and is one of the Bonds of the twenty-second series
designated as the 5.80% Senior Note Due March 1, 2037 established by the Company under the
Indenture. The acceptance of this Senior Note shall be deemed to constitute the consent and
agreement by the Holder hereof to all of the terms and provisions of the Indenture.
Subject to the terms and conditions of the Indenture, the Senior Notes are redeemable at the
option of the Company (Optional Redemption), in whole or in part, prior to Maturity, at a
Redemption Price equal to the greater of:
(a) 100% of the principal amount of the Senior Notes to be redeemed; or
(b) as determined by the Quotation Agent, the sum of the present values of the
Remaining Scheduled Payments of principal and interest on the Senior Notes to be redeemed
(not including any portion of payments of interest accrued as of the Redemption Date)
discounted to the Redemption Date on a semi-annual basis at the Adjusted Treasury Rate, plus
25 basis points,
plus, in either of the above cases, accrued and unpaid interest thereon to but not including the
Redemption Date.
Interest installments whose Stated Maturity is on or prior to such Redemption Date will be
payable to Holders of such Senior Notes, or one or more Predecessor Bonds, of record at the close
of business on the relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
In the case of an Optional Redemption, notice of redemption will be in writing and mailed
first-class postage-prepaid not less than 30 days nor more than 60 days prior to the Redemption
Date to each Holder of Senior Notes to be redeemed at the Holders registered address; provided,
however, that such notice need not state the dollar amount of the Redemption Price if such dollar
amount has not been determined as of the date such notice is being given to the Holders of the
Senior Notes being redeemed. If money sufficient to pay the Redemption Price of all Senior Notes
(or portions thereof) to be redeemed on the Redemption Date is deposited with the Paying Agent or
the Trustee on or prior to the Redemption Date, from and after such Redemption Date such Senior
Notes or portions thereof shall cease to bear interest.
- 6 -
Senior Notes in denominations larger than $1,000 in principal amount may be redeemed in part
but only in integral multiples of $1,000.
In the event of redemption of this Senior Note in part only, a new Senior Note or Senior Notes
of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof
upon the surrender hereof.
As provided in the Indenture and subject to certain limitations therein set forth, this Senior
Note or any portion of the principal amount hereof will be deemed to have been paid for all
purposes of the Indenture and to be no longer Outstanding thereunder, and the Companys entire
indebtedness in respect thereof will be satisfied and discharged, if there has been irrevocably
deposited with the Trustee or any Paying Agent (other than the Company), in trust, money in an
amount which will be sufficient and/or Eligible Obligations, the principal of and interest on which
when due, without regard to any reinvestment thereof, will provide moneys which, together with
money, if any, deposited with or held by the Trustee or such Paying Agent, will be sufficient to
pay when due the principal of and premium, if any, and interest on this Senior Note when due.
If an Event of Default shall occur and be continuing, the Trustee or the Holders of not less
than 33% in aggregate principal amount of the Outstanding Bonds, considered as one class, may
declare the principal amount of all Bonds then Outstanding to be due and payable immediately by
notice in writing to the Company (and to the Trustee if given by Holders); provided, however, that
with respect to certain Events of Default relating to bankruptcy, insolvency and similar events,
the principal amount of all Bonds then Outstanding shall be due and payable immediately without
further action by the Trustee or the Holders.
The Indenture permits, with certain exceptions as therein provided, the Company and the
Trustee to enter into one or more supplemental indentures for the purpose of adding any provisions
to, or changing in any manner or eliminating any of the provisions of, the Indenture with the
consent of the Holders of not less than a majority in aggregate principal amount of the Bonds at
the time Outstanding, considered as one class; provided, however, that if there shall be Bonds of
more than one series Outstanding under the Indenture and if a proposed supplemental indenture shall
directly affect the rights of the Holders of Bonds of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate principal amount of the
Outstanding Bonds of all series so directly affected, considered as one class, shall be required;
and provided, further, that if the Bonds of any series shall have been issued in more than one
Tranche and if a proposed supplemental indenture shall directly affect the rights of the Holders of
Bonds of one or more, but less than all, of such Tranches, then the consent only of the Holders of
a majority in aggregate principal amount of the Outstanding Bonds of all Tranches so directly
affected, considered as one class, shall be required; and provided, further, that the Indenture
permits the Company and the Trustee to enter into one or more supplemental indentures for certain
purposes without the consent of any Holders of Bonds. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of Bonds, on behalf of the
Holders of all such Bonds, to waive certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Senior Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Senior Note and of
- 7 -
any Senior Note issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this Senior Note.
As provided in and subject to the provisions of the Indenture, the Holder of this Senior Note
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default, the Holders of
at least 33% in aggregate principal amount of the Bonds at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from
the Holders of at least a majority in aggregate principal amount of Bonds at the time Outstanding a
direction inconsistent with such written request, and shall have failed to institute any such
proceeding for 60 days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Senior Note for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Senior Note or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Senior Note at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Senior Note is registrable in the Bond Register, upon surrender of this Senior
Note for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Senior Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company, the Trustee or
the Bond Registrar, as the case may be, duly executed by the Holder hereof or such Holders
attorney duly authorized in writing, and thereupon one or more new Senior Notes of like tenor, of
authorized denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Senior Notes are issuable only in registered form without coupons in denominations of
$1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Senior Notes are exchangeable for a like aggregate principal amount
of Senior Notes and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company shall not be required to execute or to provide for the registration of the
transfer of or the exchange of (A) any Senior Note of this series during a period of 15 days
immediately preceding the date notice is to be given identifying the serial numbers of the Senior
Notes called for redemption, or (B) any Senior Note selected for redemption in whole or in part,
except the unredeemed portion of any Senior Note being redeemed in part.
- 8 -
Prior to due presentment of this Senior Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Senior
Note is registered as the owner hereof for all purposes, whether or not this Senior Note is
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Senior Note shall be governed by, and construed and enforced in accordance with, the laws
of the State of California without regard to the principles of conflicts of laws thereunder, except
to the extent that the Trust Indenture Act shall be applicable.
As provided in the Indenture, no recourse shall be had for the payment of the principal of,
premium, if any, or interest with respect to this Senior Note, or any part thereof, or for any
claim based hereon or otherwise in respect hereof, or of the indebtedness represented hereby, or
upon any obligation, covenant or agreement under the Indenture, against any incorporator,
shareholder, officer or director, as such, past, present or future, of the Company or of any
predecessor or successor corporation (either directly or through the Company or a predecessor or
successor corporation), whether by virtue of any constitutional provision, statute or rule of law
or by the enforcement of any assessment or penalty or otherwise; it being expressly agreed and
understood that the Indenture and all the Bonds are solely corporate obligations and that any such
personal liability is hereby expressly waived and released as a condition of, and as part of the
consideration for, the execution of the Indenture and the issuance of this Senior Note.
All terms used in this Senior Note which are not defined herein shall have the meanings
assigned to them in the Indenture.
- 9 -
ASSIGNMENT FORM
To assign this Senior Note, fill in the form below: (I) or (we) assign and transfer this
Senior Note to
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
|
|
|
and irrevocably appoint
|
|
|
|
|
|
to transfer this Senior Note on the books of the Company. The agent may substitute another to act
for him.
|
|
|
|
|
Date:
|
|
|
|
|
|
|
Your signature:
|
|
|
|
|
|
|
|
|
|
(Sign exactly as your name appears on the face of this Senior
Note)
|
|
|
|
|
|
|
|
Tax Identification No.:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SIGNATURE GUARANTEE:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Signatures must be guaranteed by an eligible guarantor
institution meeting the requirements of the Bond Registrar,
which requirements include membership or participation in the
Securities Transfer Agent Medallion Program (
STAMP
) or such
other signature guarantee program as may be determined by
the Bond Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of
1934, as amended .
|
- 10 -